                                                                                            06/23/2020
                                         OP 20-0276

              IN THE SUPREME COURT OF THE STATE OF MONTANA                            Case Number: OP 20-0276



                                        2020 MT 164


MONTANA DEPARTMENT OF LABOR AND
INDUSTRY, EMPLOYMENT RELATIONS DIVISION,

               Petitioner,

         v.

MONTANA THIRTEENTH JUDICIAL DISTRICT
COURT, Yellowstone County, THE HONORABLE
DONALD L. HARRIS, Presiding Judge,

               Respondent.


ORIGINAL PROCEEDING:                Petition for Writ of Supervisory Control
                                    In and For the County of Yellowstone,
                                    Cause No. DV 2019-1737
                                    Honorable Donald L. Harris, Presiding Judge


COUNSEL OF RECORD:

                For Petitioner:

                       Rune Vander Wey, Department of Labor and Industry, Helena, Montana

                For Respondent:

                       The Honorable Donald L. Harris, Montana Thirteenth Judicial District
                       Court, Billings, Montana



                                                             Decided: June 23, 2020


Filed:

                                  cr— 6.--if
                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion and Order of the Court.

¶1     Petitioner Montana Department of Labor and Industry, Employment Relations

Division (DLI), petitioned this Court for a writ of supervisory control over the

Thirteenth Judicial District Court, Yellowstone County, in Cause No. DV 2019-1737.

After reviewing DLI’s Petition, we granted the employer in the underlying action and the

Hon. Donald L. Harris, Presiding Judge, time to respond. Judge Harris has responded in

opposition to the petition.

¶2     At issue is the District Court’s Order Denying Petition for Judgment. DLI had

applied to the District Court for enforcement of judgment against El Corral, a Billings

restaurant, on behalf of Jordan Carillo for unpaid wages pursuant to § 39-3-212(1), MCA.

DLI did not serve El Corral under M. R. Civ. P. 4, contending that applications for

enforcement of judgment do not require service under §§ 39-3-212 and -216, MCA.

¶3     The District Court disagreed with DLI’s interpretation of the statutes, concluding

that the filing of an application for enforcement of judgment initiates a suit at law and that

due process requires service of process under M. R. Civ. P. 4.

¶4     DLI then petitioned this Court for a writ of supervisory control pursuant to

M. R. App. P. 14(3). DLI explains that it seeks this Court’s ruling because different

district courts, both throughout the state and between different divisions within the same

district, hold DLI to different standards with respect to service of these applications. Some

district court judges do not require service, some require service under M. R. Civ. P. 5,

and, as noted, Judge Harris required service under M. R. Civ. P. 4. With this Petition,

“DLI seeks clarification of the law for itself, wage claimants, employers, and the courts.”
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¶5     Although DLI fashions its petition as a petition for writ of supervisory control, the

relief it seeks is that of a declaratory judgment. As such, we will consider its petition under

the criteria set forth in M. R. App. P. 14(4). See Barrus v. Mont. First Judicial Dist. Court,

2020 MT 14, ¶ 20, 398 Mont. 353, 456 P.3d 577. Rule 14(4) provides:

       An original proceeding in the form of a declaratory judgment action may be
       commenced in the supreme court when urgency or emergency factors exist
       making litigation in the trial courts and the normal appeal process inadequate
       and when the case involves purely legal questions of statutory or
       constitutional interpretation which are of state-wide importance.

¶6     We have determined that the present matter meets these criteria. As DLI explains

in its petition, the normal appeal process is inadequate because complying with the

District Court’s order would moot the issue on appeal, and direct appeal is not available at

this juncture as there is no final judgment and no adverse party. The issue presented in

DLI’s petition is purely a legal question of statutory interpretation, the resolution of which

is of state-wide importance: As DLI explains, it seeks this Court’s determination so that

the district courts may apply the law consistently.

¶7     At issue is whether service is required when DLI files an application for

enforcement of judgment when it seeks enforcement of a final agency decision in a

wage claim action. Sections 39-3-212(1) and -216(1), MCA, respectively, set forth the

procedure for enforcing a final agency decision in a wage claim matter:

       A department default order or a decision of the hearings officer, if judicial
       review is not sought, may be enforced by application by the commissioner to
       a district court for an order or judgment enforcing the decision. The
       commissioner shall apply to the district court where the employer has its
       principal place of business or in the first judicial district of the state. A
       proceeding under this section is not a review of the validity of the
       administrative decision.
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       If the department determines that a wage claim is valid and the employer
       does not appeal the determination, the department may enter a default order
       against the employer for the amount of wages due and for any penalty
       assessed pursuant to 39-3-206. The department may enforce the default
       order pursuant to 39-3-212.

¶8     DLI argues that no service is required under M. R. Civ. P. 4 when it applies for

enforcement of judgment in a district court because the respondent employer was served

in the administrative process, did not seek judicial review of the administrative

determination—which then became final and binding by operation of law—and has no

further process due it. DLI asserts that an application for enforcement of judgment is not

a complaint or separate cause of action but is “merely the final step in the enforcement of

a case that has already been adjudicated in favor of the wage claimant.” It argues that the

due process concerns Rule 4 is meant to address are not present in these actions because

the respondent employer was provided with notice and the opportunity to respond at the

administrative level, and the district court may not review the validity of the administrative

decision under § 39-3-212(1), MCA. DLI argues that requiring it to effect service under

Rule 4 would create a burden upon DLI while failing to advance any due process

considerations.

¶9     Judge Harris responds that the burden of service under Rule 4 is minor when

balanced against due process considerations. He argues that Rule 4 requires service when

initiating a suit at law, and since this Court has previously held that an administrative

hearing is not a suit at law, Thornton v. Comm’r of Dep’t of Labor & Indus., 190 Mont. 442,

448, 621 P.2d 1062, 1066 (1980), service is required when DLI applies for enforcement of

                                              4
judgment under § 39-3-212(1), MCA. He argues that service furthers due process because

it provides a defendant with notice and affords the defendant the opportunity to defend. He

further argues that the court has no assurance that the respondent employer knows about

the outcome of the administrative matter because there is no certificate of service with

DLI’s filings.

¶10    In Thornton, Thornton filed a wage claim with DLI, which found him to be entitled

to part of the wages he sought. It denied his request for attorney fees, however, and

Thornton petitioned the District Court for judicial review. The court dismissed his petition.

Thornton then appealed to this Court. Thornton, 190 Mont. at 443-44, 621 P.2d at 1063-64.

In determining whether Thornton could recover attorney fees for his pursuit of the

wage claim at the administrative level, the Court looked to § 39-3-214(1), MCA, which

provides in part that if an employee must “enter or maintain a suit at law” to recover unpaid

wages, the resulting judgment must include reasonable attorney fees “incurred in

connection with the proceeding.” The Court determined that an administrative hearing is

not a “suit at law” and that a determination from such hearing is not a “judgment.” Thus,

Thornton was only entitled to attorney fees for services rendered for the appeal.

Thornton, 190 Mont. at 448, 621 P.2d at 1066.

¶11    In this case, neither party requested judicial review of the administrative decision.

Therefore, under § 39-3-212(1), MCA, DLI then applied to the District Court for

enforcement of judgment because, per the applicable statutes, the administrative decision

had become final and binding by operation of law. As DLI points out in its petition, the

goal of service is to “give notice to the defendant and thereby afford him the opportunity
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to defend himself or his property – an essential to due process of law.”

Mont. Prof’l Sports, LLC, v. Nat’l Indoor Football League, LLC, 2008 MT 98, ¶ 31,

342 Mont. 292, 180 P.3d 1142 (citation omitted). Unlike the claimant in Thornton, the

respondent employer in this case has no remaining opportunity to defend itself or its

property, as the administrative decision became final and all appeal deadlines have run. At

this stage, the respondent employer has no more process due.

¶12    Furthermore, the administrative process guarantees a respondent employer the right

to notice, the opportunity to defend, and the right to seek judicial review. Although

Judge Harris also expressed concern that the District Court has no way of knowing if the

respondent employer received proper notice at the administrative level, the

administrative process requires notification at the outset. Admin. R. M. 24.16.7527(1)

(“A claim is commenced when a letter is mailed to the employer by an authorized

representative of the commissioner notifying the employer of the claim.”).

¶13    Therefore, we agree with DLI that it need not follow M. R. Civ. P. 4 service of

process requirements when applying for enforcement of judgment in Montana’s district

courts in wage claim matters pursuant to § 39-3-212(1), MCA. The administrative process

with its attendant right of judicial review provided by the applicable statutes satisfies the

due process considerations of respondent employers.

¶14    We conclude, however, that the statutes do not exempt DLI from compliance with

M. R. Civ. P. 5, which requires service on every party of, among other documents,

“a written notice, appearance, demand, or offer of judgment, or any similar paper.”

M. R. Civ. P. 5(a)(1)(E). The Rule also requires service of “a written motion and any
                                             6
supporting brief, except one that may be heard ex parte.” M. R. Civ. P. 5(a)(1)(D). Even

though the Department’s enforcement application does not commence a new action,

nothing in the governing statutes expresses authority for an ex parte proceeding. Service

under Rule 5 may be made by any number of means specified in subsection (b) of the Rule.

¶15    IT IS THEREFORE ORDERED that DLI’s petition for original jurisdiction is

ACCEPTED and GRANTED as an original proceeding in the form of a declaratory

judgment action under M. R. App. P. 14(4).

¶16    IT IS FURTHER ORDERED that DLI is not required to serve the respondent

employer in accordance with M. R. Civ. P. 4 when filing an application for enforcement of

judgment in a district court pursuant to § 39-3-212(1), MCA, but must give the employer

notice under one of the service alternatives prescribed in M. R. Civ. P. 5(b).

¶17    The Clerk is directed to provide notice of this Order to all parties and counsel of

record in the Thirteenth Judicial District Court’s Cause No. DV 2019-1737, and to the

Honorable Donald L. Harris, presiding District Court Judge.


                                                 /S/ BETH BAKER


We Concur:

/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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