                            NO.    93-131
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1993


HAMPTON 3. BRAND,
          Plaintiff and Appellant,

                                            ,     i&      ::.              ~'    1
STATE OF MONTANA, DEPARTMENT                                                    i
OF REVENUE, UNEMPLOYMENT INSURANCE
DIVISION, WORKERS' COMPENSATION                          i".Y
                                                     #'T' .,. _ ,.~
                                                     _ ,_,
DIVISION, FERGUS COUNTY "OFFICERS,"                                             ,~ ~ :; ."P
                                                g%Es&;:~ '~,i;; <,;; ;j ,; ~; j "in
          Defendants and Respondents.




APPEAL FROM:   District Court of the Tenth Judicial District,
               In and for the County of Fergus,
               The Honorable Peter L. Rapkoch, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:

               Hampton J. Brand, Lewistown, Montana, Pro Se
          For Respondent:
               David L. Nielsen, Department of Revenue, Helena,
               Montana



                                  Submitted on Briefs:                   June 10, 1993
                                                Decided:                July 15, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.




      This is an appeal from an order of the Tenth Judicial District
Court,       Fergus   County,   dismissing appellant Hampton J.   Brand's
(Brand) petition :for        judicial review and dismissing his document

entitled "Writ of Civil Habeas Corpusl' on the grounds that it is

incomprehensible and unauthorized as a pleading under any statute

or   rule.     We affirm.

      The Department of Revenue (the Department) issued a warrant
for distraint on January 29, 1993,           for $11,883.56 in past due

income tax, interest, and penalties.          On February 5, 1993, Brand

filed a document with the District Court entitled "Motion For Stay

Of Judgment (Warrant For Distraint No. WIT0091868) And Request For

A Judicial Review, Tenth Judicial District Court, Fergus County,

Montana      Republic."     The substance of this document was a plea to

the District Court to forgive his late filing of the request for

judicial review in order to allow him to defend the charges.          The

caption of this document listed only the Department as a defendant.

The Department was not properly served with a copy of the document.

The other parties listed above were added to the caption in Brand's

notice of appeal.         According to the   District Court file, none of

these parties have been served either.

       On February 18, 1993, Brand filed a document entitled "Writ of

Civil Habeas Corpus."             For the most part this document is

incomprehensible,         but it appears to request the appearance of


                                        2
numerous individuals, presumably in connection with his request for

judicial review.
     That day,     the District Court entered an order in which it

noted that Brand had failed to follow the procedural requirements

for judicial review found in 5 2-4-702, MCA.     The court also noted
that Brand appeared to admit he missed the requirement that he file

his petition for judicial review within thirty days of service of

the final agency decision.    Because the petition was defective, the

District Court dismissed it for lack of jurisdiction, leaving open
the possibility that       Brand   could   refile if    all   procedural

requirements,    including time requirements, were met.          The court

also dismissed the "Writ of Civil Habeas Corpus,"        because it was

not an authorized pleading under any of the applicable statutes or

rules.
         The above facts are all that can be gleaned from the District

Court file.     On appeal to this Court, however, it appears from his

brief and documents appended thereto that Brand is aggrieved by

some actions taken by the State of Montana, Unemployment         Insurance

Division and what was formerly known as the Workers' Compensation

Division of the Department of Labor and Industry.
     The sole issue on appeal is whether the District Court erred

in dismissing this matter for lack of jurisdiction.
     Section 2-4-702, MCA,     sets forth the procedure by which to

initiate judicial review of a contested case.          Brand's    petition

fails to meet the requirements of this section in at least two

areas.    Before we address those areas we note that Brand's petition


                                    3
may be defective in one other area.             SeCtiOn    2-4-702     (2)   (a),   MCA,
provides:

        Proceedings for review shall be instituted by filing a
        petition in district court within 30 days after service
        of the final decision of the agency or, if a rehearing is
        requested, within 30 days after the decision thereon. .
        . .

        In his petition, Brand admits missing a deadline.                Because the

petition lacked any of the details required by statute,                              the
District Court only assumed that the statute cited above was the

deadline to which Brand referred.           The District Court dismissed the

petition without prejudice, leaving open the possibility that Brand
could     refile   if the filing deadline were             met.        However,      the

District Court did not rely on this point to dismiss the petition,

and we need not rely on it to affirm the District Court.
        We next address the content requirements for the petition

itself.     Those requirements are addressed in           § 2-4-702(2)(b), MCA,

which provides:

        The petition shall include a concise statement of the
        facts upon which jurisdiction and venue are based, a
        statement of the manner in which the petitioner is
        aggrieved, and the ground or grounds specified in 2-4-
        704(2) upon which the petitioner contends he is entitled
        to relief. The petition shall demand the relief to which
        the petitioner believes he is entitled, and the demand
        for relief may be in the alternative.

        Brand's petition fails to      meet   any of these requirements. It

only admits failure to meet a deadline and prays that the court

will overlook that requirement and permit him to defend against the

administrative       action.    Therefore,    the   petition      is    procedurally

defective.         This   defect,   especially the failure to establish

jurisdiction, leads to the final reason the               District   Court properly

                                        4
dismissed       the          peti.tion.

        Under        5       2-4-702(1)(a),                   MCA,          “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         .     .      .    .'I          Failure             to         exhaust         all         administrative

remedies        precludes                  judicial               review.                   See       Cottonwood              Hills        v.

Department      of        Labor         and     Indus.            (1989),            238        Mont.      404,     406,       777       P.2d

1301,     1302,          where          we      said         that           "[clompliance                   with        the        [initial

review     procedures               :for       an      unemployment                   insurance            claim]       is     mandatory

because        only          after           the         procedures                   have        been       followed              is     the

District       Court         vested            with      jurisdiction."                     See      also      Gilpin          v.       State

(1991) I 249             Mont.      37, 812              P.2d       1265          (district            court      did        not    err     in

dismissing           the          plaintiffs'                 claim             on        the     ground          that        it     lacked

jurisdiction             because             the       plaintiffs                 had        failed         to      exhaust             their

administrative            remedies);                  and     Barnicoat               v.        Commissioner            of     Dept.       of

Labor    and        Indus.         (1982),             201        Mont.          221,       653       P.2d        498     (plaintiff's

failure        to        utilize           agency            rehearing                and       appeal         process         precluded

him     from    requesting                 judicial           review             in       district         court).           Nothing       in

the      petition             indicates                that         Brand             has         exhausted             all        of     his

administrative                remedies.                  Brand       failed            to       include      any        facts       in     his

petition        to           establish                jurisdiction.                   Therefore,             we     hold       that        the

District       Court         did        not        err       in     dismissing               the       petition         for        lack     of

jurisdiction             over        the        matter.

         Nor    did          the     District               Court       err          in     dismissing            Brand's          document

entitled       "Writ           of       Civil          Habeas           Corpus" as                an       incomprehensible                and

unauthorized              pleading.                   Brand        simply             has       no     authority         to        issue     a


                                                                        5
writ commanding a district court judge or anyone else to appear.
     Affirmed.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.




We concur:




                                 6
                                          July 15, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Hampton J. Brand
c/o Route 2, Box 2184
Lewistown, MT 59457



David Woodgerd
Chief Legal Counsel
Department of Revenue
Mitchell Bldg.
Helena, MT 59620




ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
