NO. 96-251
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
DARYL A. STENSTROM,
Plaintiff and Appellant,
STATE OF MONTANA, CHILD SUPPORT
ENFORCEMENT DIVISION and
THE STATE OF NEBRaSKA.
Defendants and Respondents.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C . B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry Wallace, Attorney at Law, Missoula, Montana
For Respondents:
K . Amy Pfeifer, Attorney at Law, Department of
Public Health and Human Services, Helena, Montana
Submitted on Briefs: October 31, 1996
Decided: December 2 0 , 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Appellant Daryl A. Stenstrom (Stenstrom) appeals the March 15,
1996 Order of the Twentieth Judicial District Court, Lake County,
dismissing his Notice of Appeal and "Complaint for Relief Jury
Demand." We affirm in part and reverse in part.
We consider the following issues on appeal:
1. Did the District Court err in dismissing Stenstrom's
"Complaint for Relief Jury Demand?"
2. Did the District Court err in dismissing Stenstrom's
Notice of Appeal of the May 1, 1995 Order of the Child Support
Enforcement Division (CSED)?
Procedural and Factual Backqround
On October 3, 1994, CSED received an interstate Child Support
Enforcement Transmittal fromthe Lancaster County Attorney's Office
in Lincoln, Nebraska. The referral requested collection of child
support arrears allegedly owed by Stenstrom, via income
withholding. The alleged debt was based on an Order issued in the
district court of Lancaster County, Nebraska on July 17, 1986,
finding Stenstrom to be the father of Troy Clark and setting child
support payments of $125 per month commencing August, 1986.
The CSED initiated income withholding proceedings against
Stenstrom pursuant to 5 40-5-401 et seq., MCA. Stenstrom was
served a Notice of Intent to Withhold Income which alleged that
Stenstrom owed $9,960 as support arrears and had a continuing
support obligation of $125 per month. Stenstrom requested an
administrative hearing alleging that the paternity determination in
2
the Nebraska order was invalid for lack of hearing or service of
process on him and that the child support determination was invalid
as Nebraska never served him with any process regarding a
determination of support.
A telephonic administrative hearing on Stenstrom's objection
to withholding was held on January 17, 1995, more that sixty days
after the Notice of Intent was served. At the outset of the
hearing, Stenstrom objected to the presence of persons not directly
participating in the proceeding, claiming that the hearing should
be confidential pursuant to 5 40-6-120, MCA, of the Uniform
Parentage Act, as the proceeding was one for paternity. The CSED
argued that the matter was an income withholding action under 5 40-
5-414, MCA, and not a paternity hearing. The Administrative Law
Judge (ALJ) stayed the hearing to allow briefing by the parties.
In his brief, Stenstrom claimed that a hearing had not been
held within forty-five days of service of the Notice of Intent to
Withhold as mandated by § 40-5-414(7),MCA, and 46.30.643(I), ARM,
and that the hearing should be confidential pursuant to 5 40-6-120,
MCA .
On May 1, 1995, the ALJ issued an Order Denying Motion for a
Closed Telephone Hearing and Order Denying Motion to Dismiss. The
Order stated that Stenstrom could not raise paternity as an issue
in the proceeding and that the delay in holding the initial hearing
was warranted. The hearing was then reset for June 19, 1995.
On June 15, 1995, before the administrative hearing was held,
Stenstrom filed a "Complaint for Relief Jury Demand" in District
Court. The complaint alleged that the defendant State of Nebraska
fraudulently obtained its paternity and support order against him;
that defendant State of Montana CSED failed to register the
Nebraska order; that a final decision of the CSED would not provide
him an adequate remedy and therefore the decision to foreclose the
issue of paternity was immediately reviewable under § 2-4-701,MCA;
that defendants intentionally and deliberately inflicted extreme
emotional and mental pain and anxiety on him; and requested
reasonable attorney's fees, return of wages with interest, damages,
and costs. In the complaint, Stenstrom asked the court to declare
"defendants' order null and void from fraud and lack of
jurisdiction." Stenstrom did not request the ALJ or the District
Court to stay the impending administrative hearing
On June 17, 1995, a copy of the summons issued by the Clerk of
the District Court was telefaxed to defendant CSED but the
complaint was neither telefaxed with the summons nor later mailed
to CSED. The complaint was not served on CSED until November 14,
1995, at which time the CSED acknowledged service.
The ALJ convened the administrative withholding hearing on
June 19, 1995, despite the absence of Stenstrom or his attorney.
On June 29, 1995, the ALJ issued his Income Withholding Decision
and Order determining that Stenstrom owed $1,710 for the support of
Troy Clark. An amended Order was issued July 11, 1995, reflecting
the accurate period of time for which Stenstrom owed child support
based upon evidence that Troy was adopted by his step-father in
April of 1989.
On July 31, 1995, Stenstrom filed a Notice of Appeal in the
District Court seeking judicial review of the June 29, 1996 Income
Withholding Decision on the basis inter alia, that CSED lacked in
rem and in personam jurisdiction as a result of his complaint filed
in the District Court. Stenstrom had mailed counsel for CSED a
copy of the Notice of Appeal on July 27, 1995.
CSED subsequently filed a Motion to Dismiss both the Complaint
and the Notice of Appeal with the District Court. The motion to
dismiss the complaint was based on Rules 12 (b)(I), (lack of subject
matter jurisdiction), 12 (b)(6), (failure to state a claim for which
relief can be granted), 12 (b)( 7 ) , (failure to join an indispensable
party under Rule 19), and failure to exhaust administrative
remedies. The motion to dismiss the Notice of Appeal was based on
Rules 12 (b)(1) (lack of subject matter jurisdiction), 12 (b)(2),
,
(lack of personal jurisdiction) and 12 (b)( 4 ) and (5) (insufficiency
of process and insufficiency of service of process).
After briefing, the District Court issued its Order on March
15, 1996, granting CSED's motion to dismiss the Notice of Appeal
and the "Complaint for Relief Jury Demand," and adopting the
"rationale and authorities cited by Defendant Montana Child
Enforcement Division. . . . " Stenstrom appeals from this order.
Standard of Review
Motions to dismiss are construed in a light most favorable to
the non-moving party and should not be granted unless it appears
beyond a doubt that the non-moving party can prove no set of facts
in support of its claim which would entitle it to relief. See
Hilands Golf Club v. Ashmore (Mont. l996), 922 P.2d 469, 471-72, 53
St.Rep. 664, 665. In considering the motion, the complaint is
construed in the light most favorable to the non-moving party and
all allegations of fact contained therein are taken as true. The
District Court's conclusions that Stenstrom's "Complaint for Relief
Jury Demand" and his Notice of Appeal failed to withstand CSEDrs
12(b) motions are conclusions of law. Our standard of review of a
district court's conclusions of law is whether the court's
interpretation of the law is correct. Carbon County v. Union
Reserve Coal Co., Inc. (1995), 271 Mont. 459, 898 P.2d 680, 686.
Issue One
Did the District Court err in dismissing Stenstrom's
Notice of Appeal of the ALJ's June 29, 1995 Order finding
Stenstrom liable for child support arrearages?
Stenstrom filed the Notice of Appeal on July 31, 1995. In its
brief, CSED concedes that Stenstrom timely filed his Notice of
Appeal. At the time Stenstrom filed and mailed his Notice of
Appeal, mailing was not sufficient service to perfect a judicial
review. Fife v. Martin (l993), 261 Mont. 471, 863 P.2d 403.
However, this Court overruled Fife, in Hilands, in which we held
that service by mail of a petition for judicial review in
accordance with Rule 5, M.R.Civ.P., is sufficient service.
Hilands, 922 P.2d at 474. Since an appellate court must apply the
law in effect at the time it renders its decision, see Day v. Child
Support Enforcement Div. (1995), 272 Mont. 170, 900 P.2d 296, we
must, consistently with Hilands, hold that the Notice of Appeal was
a timely served request for judicial review. Consequently, the
District Court has jurisdiction to hear the petition for judicial
review and we therefore remand to the District Court for judicial
review of the June 29, 1995 Administrative Order.
Issue Two
Did the District Court err in dismissing Stenstrom's
"Complaint for Relief Jury Demand?"
Stenstrom argues that his "Complaint for Relief Jury Demand"
was not only a complaint but also a petition for judicial review of
the ALJ's May 1, 1995 Order refusing to close the hearing and
precluding paternity as an issue in the hearing. Stenstrom argues
that he was forced to litigate all of his claims in one petition to
avoid later dismissal on the basis of res j u d i c a t a and hence his
complaint for damages and his request for judicial review of an
intermediate order were presented together. Stenstrom argues that
the District Court erred in dismissing both his claims for damages
and his request for judicial review of an intermediate
administrative order pursuant to § 2-4-701, MCA.
The CSED alleges that Stenstrom's request for judicial review
of the May 1, 1995 Order was properly dismissed because it failed
to conform to the judicial review requirements of 5 2-4-702, MCA.
Stenstrom alleges that because he requested judicial review of an
intermediate administrative order rather than a final
administrative order, the requirements of § 2-4-702, MCA, do not
apply.
Section 2-4-701, MCA, allows for immediate review of agency
action.
A preliminary, procedural, or intermediate agency action
or ruling is immediately reviewable if review of the
final agency decision would not provide an adequate
remedy.
Section 2-4-702, MCA, details the procedures for initiating
judicial review of contested cases:
(1) (a) A person who has exhausted all administrative
remedies available within the agency and who is aggrieved
by a final decision in a contested case is entitled to
judicial review under this chapter. This section does
not limit utilization of or the scope of judicial review
available under other means of review, redress, relief,
or trial de novo provided by statute.
. . . .
(2) (a) Except as provided in subsection (2)(c),
proceedings for review must be instituted by filing a
petition in district court within 30 days after service
of the final decision of the agency . . . . Copies of
the petition must be promptly served upon the agency and
all parties of record.
CSED relies on Fife and Rierson v. State (1980), 188 Mont.
522, 614 P.2d 1020, for the proposition that a petition for
judicial review should be served on a party within "thirty days or
thereabouts." Citing MCI v. Department of Public Serv. Regulation
(l993), 260 Mont. 175, 858 P.2d 364, CSED notes that the Supreme
Court does not have jurisdiction unless the appellant has strictly
complied with the judicial review statutes. While CSED correctly
cites the law from the above-mentioned cases, none of the decisions
involved judicial review of an intermediate administrative decision
pursuant to 5 2-4-701,MCA. All of the above cases sought judicial
review of final agency action pursuant to § 2-4-702, MCA.
Stenstrom cites to Wilson v. Department of Public Serv. Reg.
(19931, 260 Mont. 167, 858 P.2d 368, to illustrate this Court's
recognition of the uniqueness of 5 2-4-701,MCA. The Wilsons were
allowed to amend their application to the district court for
alternative writs to include a § 2-4-701,MCA, request for judicial
review. Wilson, 858 P.2d at 370. Although it appears that the
Wilsons did not comply with the § 2-4-702, MCA, requirement of
filing a petition for judicial review within thirty days, this
Court did not decide the issue of whether a request for judicial
review of an intermediate administrative order must comply with the
procedural requirements for judicial review pursuant to § 2-4-702,
MCA. The issue in Wilson was whether or not a final agency
decision would provide an adequate remedy for the Wilsons, thus,
allowing them to seek immediate review. Wilson, 858 P.2d at 370.
This Court has not yet decided whether the procedural requirements
of § 2-4-702, MCA, apply to judicial review of intermediate agency
actions pursuant to § 2-4-701, MCA.
The role of the Court in interpreting statutory language is
simply to ascertain and declare what is in terms or in substance
contained therein, not to insert what has been omitted or to omit
what has been inserted. Section 1-2-101, MCA; Goyen v. City of
Troy (1996), 276 Mont. 213, 221, 915 P.2d 824, 829. The rules of
statutory construction require the language to be construed
according to its plain meaning. Stratemeyer v. Lincoln County
(1996), 276 Mont. 67, 72-73, 915 P.2d 175, 178.
A plain reading of both statutes leads us to conclude that the
legislature did not provide that the procedural requirements of §
2-4-702,MCA, apply to immediate review of agency action under § 2-
4-701, MCA. Section 2-4-701, MCA, itself does not require
adherence to the provisions of § 2-4-702, MCA. The introductory
language in § 2-4-702(1)(a), MCA, states that "[a] person who has
exhausted all administrative remedies available within the agency
and who is aggrieved by a final decision in a contested case is
entitled to judicial review under this chapter." (Emphasis added.)
Section 2-4-702(2)(a), MCA, which contains the thirty-day
requirement, states that a petition must be filed "within 30 days
after service of the final decision of the agency . . . ."
(Emphasis added.) When a person seeks judicial review of an
intermediate agency action there is no final decision.
Additionally, § 2-4-702(1)(a), MCA, states that "this section does
not limit utilization of or the scope of judicial review available
under other means of review . . . . " Section 2-4-701, MCA, is
another means of judicial review which is apparently not limited by
§ 2-4-702,MCA.
Thus, the legislature has not provided that the procedural
requirements of § 2-4-702, MCA, apply to immediate review of an
intermediate agency action under § 2-4-701,MCA. Nevertheless, in
the interest of consistency in judicial review procedures of
administrative actions, and until the legislature makes clear the
procedures to be followed for immediate review of agency action
under 2-4-701, MCA, we find, for future reference, that the
procedural requirements of § 2-4-702,MCA, should be followed when
seeking immediate review of agency action under § 2-4-701,MCA.
However, because the legislature failed to clearly provide
that the procedural requirements of § 2-4-702, MCA, apply to
immediate review of agency action in § 2-4-701, MCA, and a fair
reading of 5 2-4-702, MCA, limits its application to "final
decisions," it would be patently unfair to apply the procedural
requirements of 5 2-4-702, MCA, to Stenstrom's petition for
immediate review.
Therefore, we reverse the District Court's dismissal of
Stenstrom's request for immediate review of the ALJ's May 1, 1995
Order, precluding paternity as an issue at the hearing, for failure
to comply with the requirements of § 2-4-702, MCA. We remand to
the District Court to hear the judicial review of the ALJ's May 1,
1995 Order.
The rules of appellate procedure do not provide that a
decision appealed from is automatically stayed. See Rule 7,
M.R.App.P. Therefore, contrary to Stenstrom's claim, filing of the
petition for immediate judicial review pursuant to 5 2-4-701,MCA,
did not automatically stay further proceedings and the ALJ retained
jurisdiction to conduct the second administrative hearing setting
the support amount.
Stenstrom's other claims pertaining to the ALJ's lack of
jurisdiction over the second administrative hearing including
CSED's failure to hold the initial hearing within forty-five days
of the Notice of Intent to Withhold, and CSED's failure to give
Stenstrom notice of registration of the support order pursuant to
5 40-5-188, MCA, must be addressed by the District Court in its
review of the May 1, 1995 Order.
Stenstrom also appeals the dismissal of his tort claims
against the State of Nebraska and the State of Montana in his
"Complaint for Relief Jury Demand." CSED argues that these claims
must be dismissed because Stenstrom failed to exhaust his
administrative remedies, failed to present his claims to the
Department of Administration, and failed to join indispensable
parties.
Because we hold that Stenstrom's "Complaint for Relief Jury
Demand" constituted a valid request for immediate judicial review
pursuant to § 2-4-701, MCA, CSED's argument that Stenstrom failed
to exhaust his administrative remedies fails.
However, because Stenstrom failed to present his tort claims
to the Department of Administration pursuant to § 2-9-301 , MCA,
(1)
his tort claims were properly dismissed.
In his "Complaint for Relief Jury Demand," Stenstrom alleged
that both defendants, State of Nebraska and State of Montana, acted
fraudulently and with bad faith and that they inflicted extreme
emotional and mental pain and anxiety on him. He requested
reasonable attorney's fees, return of wages with interest, damages,
and costs.
Section 2-9-301(1),MCA, requires all claims against the state
arising under parts 1 through 3 of Chapter 9 to be presented in
writing to the Department of Administration.
A complaint based on a claim subject to the provisions of
subsection (1) may not be filed in district court unless
the claimant has first presented the claim to the
department of administration and the department has
finally denied the claim.
Section 2-9-301(2), MCA. "Claim" is defined in 3 2-9-101,MCA, as:
IAlny claim against a governmental entity, for money
damages only, which any person is legally entitled to
recover as damages because of personal injury or property
damage caused by a negligent or wrongful act or omission
committed by any employee of the governmental entity
while acting within the scope of his employment, under
circumstances where the governmental entity, if a private
person, would be liable to the claimant for such damages
under the laws of the state.
A claim for infliction of mental pain and anxiety constitutes
a tort claim for personal injury. Sacco v. High Country Indep.
Press, Inc. (1995), 271 Mont. 209, 896 P.2d 411. All tort claims
against the state must be filed with the Department of
Administration before being filed in district court. Where a
petitioner has failed to first file with the Department of
Administration, the district court lacks jurisdiction to review the
matter. Cottonwood Hills, Inc. v. State Dep't of Labor (1989), 238
Mont. 404, 777 P.2d 1301 (dismissing a tort claim when brought with
a petition for judicial review for failure to first file with the
Department of Administration).
Stenstrom has presented no evidence that he filed his tort
claim with the Department of Administration. Instead, he points
out that the Department has 120 days in which to respond to a
claim, and argues that if he had filed his claim with the
Department before filing his petition for judicial review, he would
not have been able to meet the alleged thirty-day deadline in which
to perfect his judicial review. However, § 2-9-301(2), MCA,
provides that the 120-day period tolls the statute of limitation
for that time, and thus Stenstrom's thirty days would not begin to
run until after the Department of Administration ruled on his claim
or until the 120-day period expired.
Because Stenstrom failed to first file his tort claims with
the Department of Administration, the District Court was correct in
dismissing his tort claims and we need not address the issue of
whether Stenstrom's tort claims should be dismissed for failure to
join indispensable parties.
Conclusion
We reverse the District Court's dismissal of Stenstrom's
Notice of Appeal of the ALJ's June 29, 1995 Order setting support.
We reverse the District Court's dismissal of Stenstrom's request
for immediate judicial review of the ALJ's May 1, 1995 Order. We
affirm the District Court's dismissal of Stenstrom's tort claims in
his "Complaint for Relief Jury Demand." We remand to the District
Court for judicial review of both the June 29, 1995 Order and the
May 1, 1995 Order of the ALJ in conformity with this decision.
We concur:
Justices