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No. 99-165
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 131
300 Mont. 16
3 P. 3d 603
STUART J. PICKENS,
Petitioner and Appellant,
v.
LYNNETTE SHELTON-THOMPSON and
STATE OF MONTANA, DEPARTMENT OF
PUBLIC HEALTH AND HUMAN SERVICES,
CHILD SUPPORT ENFORCEMENT DIVISION,
Respondents and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
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Paul Neal Cooley; Skelton & Cooley, Missoula, Montana
For Respondents:
Charles W. Schuyler; Marsillo & Schuyler, Missoula, Montana
(for Lynnette Shelton-Thompson)
Gail Hammer, Department of Public Health & Human Services,
Child Support Enforcement Division, Missoula, Montana
(for Child Support Enforcement Division)
Submitted on Briefs: September 30, 1999
Decided: May 23, 2000
Filed:
__________________________________________
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Stuart Jonathan Pickens (Pickens) appeals from the judgments entered by the Fourth
Judicial District Court, Missoula County, on orders dismissing his two petitions for
judicial review of a decision and order from the State of Montana, Department of Public
Health and Human Services, Child Support Enforcement Division (CSED), determining
the amount of his current and past due child support obligation. We reverse and remand
for further proceedings.
¶2 Pickens raises a number of issues on appeal. The dispositive issue, however, is whether
the District Court's dismissal of Pickens' first petition for judicial review for lack of
subject matter jurisdiction based on his failure to comply with the requirements of § 40-5-
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253, MCA, violated Pickens' right to due process of law.
BACKGROUND
¶3 In 1995, Lynette Shelton-Thompson (Shelton-Thompson) applied to CSED for
assistance in obtaining child support from Pickens for their daughter. CSED initiated an
administrative action to determine the amount of Pickens' child support obligation and, in
August of 1998, an administrative law judge (ALJ) conducted a contested case hearing on
that issue. On August 28, 1998, the ALJ entered a decision and order determining the
amount of Pickens' current and past due child support obligation. The ALJ's order
included a paragraph notifying the parties of their statutory right to petition for judicial
review of the decision under the Montana Administrative Procedure Act (MAPA), Title 2,
Chapter 4, Part 7 of the Montana Code Annotated. The notice did not refer to § 40-5-253,
MCA, which contains more specific procedural requirements for appealing from an
administrative decision in a child support enforcement case than those found in the MAPA.
¶4 Pickens timely filed a petition for judicial review of the ALJ's order and mailed copies
of the petition to Shelton-Thompson and CSED. CSED subsequently moved the District
Court to dismiss the petition for lack of jurisdiction because Pickens had failed to properly
serve the parties as required by § 40-5-253, MCA. The District Court concluded that it
lacked subject matter jurisdiction over the petition because Pickens failed to comply with
the requirements of § 40-5-253, MCA, granted CSED's motion and dismissed Pickens'
petition. Pickens moved the court to amend or reconsider its order dismissing his petition.
He argued, inter alia, that application of § 40-5-253, MCA, in this case violated his
constitutional right to due process of law. His motion subsequently was deemed denied by
operation of Rule 59(g), M.R.Civ.P.
¶5 While Pickens' motion to amend or reconsider was pending in the District Court, he
requested the ALJ to amend the underlying decision, asserting that the failure to refer to §
40-5-253, MCA, in the order's notice provision was a clerical error which should be
corrected. On February 2, 1999, the ALJ entered its Order Correcting Clerical Error,
which added a reference to § 40-5-253, MCA, to the notice provision of the earlier order.
¶6 On February 25, 1999, Pickens appealed from the ALJ's amended order by filing a
complaint under a new cause number. CSED moved to dismiss, asserting that the
complaint was actually a petition for judicial review of the ALJ's original decision and the
court lacked jurisdiction because the complaint was not timely filed. The District Court
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deemed the complaint a petition for judicial review, granted CSED's motion to dismiss
and entered judgment on the dismissal. Pickens appeals from the orders dismissing each of
his actions.
STANDARD OF REVIEW
¶7 We review a district court's ruling on a motion to dismiss to determine whether the
court abused its discretion. In re McGurran, 1999 MT 192, ¶ 7, 295 Mont. 357, ¶ 7, 983
P.2d 968, ¶ 7 (citation omitted). However, a court's determination that it lacks subject
matter jurisdiction is a conclusion of law which we review to determine whether the
court's interpretation of the law is correct. In re McGurran, ¶ 7 (citation omitted).
Moreover, constitutional issues raise questions of law and our review of such questions is
plenary. See State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503.
DISCUSSION
¶8 Did the District Court's dismissal of Pickens' first petition for judicial review for lack of
subject matter jurisdiction based on his failure to comply with the requirements of § 40-5-
253, MCA, violate Pickens' right to due process of law?
¶9 The notice provision in the ALJ's decision and order informed Pickens that he had a
right to petition for judicial review of the decision under the MAPA, which provides
procedures by which parties may obtain judicial review of administrative decisions in
contested cases. Pursuant to the MAPA, a party may appeal an administrative decision by
filing a petition for judicial review in the appropriate district court within 30 days of
service of the decision and promptly serving copies of the petition on the agency involved
and all parties of record. Section 2-4-702(2)(a), MCA.
¶10 Proper service of a petition for judicial review is a threshold requirement for a district
court to obtain subject matter jurisdiction over the case. Fife v. Martin (1993), 261 Mont.
471, 477, 863 P.2d 403, 407 (overruled on other grounds by Hilands Golf Club v.
Ashmore (1996), 277 Mont. 324, 331, 922 P.2d 469, 473). In that regard, we have held
that a petition for judicial review under the MAPA may be properly served by mailing
copies of the petition to the agency and other parties; there is no requirement that a
summons be issued and served in conjunction with the petition. Hilands, 277 Mont. at 332,
922 P.2d at 474. Here, Pickens timely filed his petition for judicial review in the District
Court on September 24, 1998, and mailed copies of the petition to CSED and Shelton-
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Thompson on or about the same date, thus fulfilling the service requirements established
under the MAPA and Hilands.
¶11 Where a statute provides different procedural requirements for judicial review of
decisions from a specified agency, however, the requirements of the specific statute
prevail over the provisions of the MAPA. Trustees, Carbon Cty. Sch. v. Spivey (1991),
247 Mont. 33, 36, 805 P.2d 61, 63 (citing Department of Revenue v. Davidson Cattle Co.
(1980), 190 Mont. 326, 329, 620 P.2d 1232, 1234). Section 40-5-253, MCA, provides
specific procedural requirements for judicial review of a CSED administrative decision
which differ from the MAPA requirements set forth above. With regard to the service of
petitions for judicial review in CSED actions, § 40-5-253(4), MCA, provides that
[a] summons must be issued and served under Rule 4, Montana Rules of Civil
Procedure, upon the child support enforcement division of the department and each
party, along with the petition for judicial review. . . . The district court does not
obtain jurisdiction unless the petition for judicial review is served on all parties
within 30 days after the petition is filed with the district court.
¶12 CSED moved the District Court to dismiss Pickens' petition on the basis that § 40-5-
253(4), MCA, required him to issue and serve a summons within 30 days of filing his
petition and, because he failed to do so, the court did not have jurisdiction over the case.
The District Court agreed and granted the motion to dismiss. Pickens then moved the court
to amend or reconsider its order of dismissal, asserting that application of § 40-5-253,
MCA, in this case violated his right to due process of law. The District Court implicitly
rejected his argument in this regard and Pickens asserts error.
¶13 Article II, Section 17 of the Montana Constitution provides that "[n]o person shall be
deprived of life, liberty, or property without due process of law." As Pickens observes, we
have stated that "due process generally requires notice of a proposed action which could
result in depriving a person of a property interest and the opportunity to be heard
regarding that action." Dorwart v. Caraway, 1998 MT 191, ¶ 76, 290 Mont. 196, ¶ 76, 966
P.2d 1121, ¶ 76. Pickens argues that application of § 40-5-253, MCA, in this case violates
his right to due process of law because he did not receive sufficient notice of the
procedures by which to obtain judicial review of the ALJ's decision.
¶14 Pickens contends that due process requires not only that he be given notice of his right
to judicial review, but also notice of the specific procedures by which to obtain such
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review. He further contends that notice which is inaccurate or misleading is insufficient to
satisfy due process. According to Pickens, the notice provision in this case was misleading
and did not give sufficient notice of the procedures by which to appeal the ALJ's decision
because it mentioned only § 2-4-702, MCA, and that statute does not refer to the different
procedural requirements applicable to CSED actions as set forth in § 40-5-253, MCA.
¶15 Notice sufficient to comport with due process is that which is reasonably calculated,
under all circumstances, to inform parties of proceedings which may directly affect their
legally protected interests. Montana Power Co. v. Public Service Com'n (1983), 206 Mont.
359, 368, 671 P.2d 604, 609; Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.
S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873. Where due process requires notice,
notice which is a mere gesture is insufficient. Mullane, 339 U.S. at 315, 70 S.Ct. at 657,
94 L.Ed. at 874. The notice must reasonably convey the required information and "[t]he
means employed must be such as one desirous of actually informing . . . might reasonably
adopt to accomplish it." Mullane, 339 U.S. at 314-15, 70 S.Ct. at 657, 94 L.Ed. at 874.
Moreover, when applying these guidelines to determine whether a party received adequate
notice, it must be remembered that due process is a flexible concept and should be tailored
to the circumstances of each case in a manner that meets the needs and protects the
interests of the parties involved. See Smith v. Board of Horse Racing, 1998 MT 91, ¶ 11,
288 Mont. 249, ¶ 11, 956 P.2d 752, ¶11 (citation omitted).
¶16 Pickens cites Dorwart in support of his argument that applying § 40-5-253, MCA, in
this case violates his due process rights. In Dorwart, we held that Montana's post-judgment
execution statutes violated the plaintiff's constitutional right to due process in part because
they failed to provide any means by which to notify a judgment debtor that procedures
exist to claim exemptions from execution on personal property. Dorwart, ¶ 103. In
discussing this notice requirement, however, we stated only that due process requires
notice to the debtor that such procedures are available. Here, it is clear that the notice
provision in the ALJ's decision and order notified Pickens that procedures existed by
which to obtain judicial review of the decision, thus satisfying the due process
requirements set forth in Dorwart.
¶17 The notice provision went on to inform Pickens, however, that judicial review was
governed by the provisions of the MAPA. This portion of the notice is misleading
because, by omitting any reference to the different procedural requirements for CSED
actions contained in § 40-5-253, MCA, it implies that judicial review is governed
exclusively by the MAPA. In Dorwart, we did not address or determine whether due
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process requires the notice to include details of the procedural requirements for claiming
exemptions; nor did we address whether a misleading or inaccurate notice is sufficient to
meet due process requirements. Consequently, Dorwart is of no assistance here.
¶18 Neither party cites--nor have we found--any Montana cases addressing whether
inaccurate or misleading notice is sufficient for due process purposes. Federal courts have
addressed this issue, however, and have determined that notice which is confusing,
misleading or inaccurate is insufficient to meet procedural due process requirements under
the United States Constitution because such notice does not adequately safeguard a
person's concomitant due process right of an opportunity to be heard. See, e.g., Walters v.
Reno (9th Cir. 1998), 145 F.3d 1032, 1043; Gonzalez v. Sullivan (9th Cir. 1990), 914 F.2d
1197, 1203. "A primary purpose of the notice required by the Due Process Clause is to
ensure that the opportunity for a hearing is meaningful." City of West Covina v. Perkins
(1999), 525 U.S. 234, 240, 119 S.Ct. 678, 681, 142 L.Ed.2d 636, 642 (citing Mullane, 339
U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at 873). The opportunity to be heard is not
meaningful if the notice provided does not accurately inform the person to whom it is
given of how to take advantage of that opportunity.
¶19 We adopt the federal interpretations of the due process notice requirement in this
regard. Here, Pickens received notice of his opportunity to be heard via judicial review,
but that notice misled him into believing that such judicial review was governed solely by
the procedures set forth in the MAPA. While the notice contained information regarding
procedures by which to obtain judicial review, it did not do so in a manner reasonably
calculated under the circumstances to convey the required information. See Montana
Power Co., 206 Mont. at 368, 671 P.2d at 609; Mullane, 339 U.S. at 314, 70 S.Ct. at 657,
94 L.Ed. at 873. Consequently, although Pickens met the MAPA service requirements, his
reliance on the information contained in the ALJ's notice provision resulted in his failure
to properly serve his petition pursuant to § 40-5-253, MCA, and, ultimately, to his being
denied a meaningful opportunity to be heard.
¶20 Notwithstanding the absence of any reference to § 40-5-253, MCA, in the ALJ's
notice provision, CSED asserts that Pickens had sufficient notice of the statute's service
requirements. It contends that, at the time the § 40-5-253, MCA, service requirements
went into effect, it notified attorneys of the new requirements via letters to all members of
the State Bar of Montana and an article in the State Bar's publication. CSED also urges
that it makes available to anyone requesting it a free information packet detailing the
procedures for obtaining judicial review of a CSED action. CSED further points out that
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the statute governing the procedures for administrative hearings in CSED actions refers to
§ 40-5-253, MCA. On this basis, CSED argues that Pickens and his attorney should have
been aware of the § 40-5-253, MCA, service requirements. CSED's argument is
unpersuasive in light of the fact that, despite its described efforts to inform the public and
legal community of the § 40-5-253, MCA, requirements, even its own ALJ apparently was
not aware of the statute's requirements.
¶21 We conclude that, under these circumstances, the notice provision in the ALJ's
decision and order did not provide notice to Pickens adequate to meet due process
requirements and, consequently, application of the § 40-5-253, MCA, service
requirements in this case would violate Pickens' right to due process of law. We further
conclude that, under these unique circumstances, Pickens' petition for judicial review must
be governed by the service requirements set forth in the MAPA and Hilands, and of which
Pickens received notice.
¶22 The MAPA requirements were met in this case. As a result, the District Court
obtained subject matter jurisdiction over Pickens' petition. We hold that the District
Court's dismissal of Pickens' first petition for judicial review based on his failure to
comply with the requirements of § 40-5-253, MCA, violated Pickens' right to due process
of law and constituted an abuse of discretion.
¶23 Reversed and remanded for further proceedings on Pickens' first petition for judicial
review.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
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