                                   No.      96-393

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         1996



DOUGLAS GIEBEL,
             Plaintiff and Appellant,

      v.

MONTANA SYSTEM OF HIGHER EDUCATIONi MSU-NORTHERNi
JEFFREY BAKER, MONTANA COMMISSIONER OF HIGHER
                                                                                 ,
EDUCATIONi WILLIAM DAEHLING, CHANCELLOR, MSU-NORTHERNi
                                                  - ....... i, .', ,
                                                                 (~   '<,   •
                                                                                "
                                                                          ,,_,>tl' '"

STEPHEN SYLVESTER CHAIRMAN, DEPARTMENT OF HUMANITI&$;;,:,;.,;',·-;:,;; '\)('1'<,
AND SOCIAL STUDIES, MSU-NORTHERNi and JANE ¥..ATHLEEN                ~. "-;'J';'~A
CURRY, ASSISTANT PROFESSOR, MSU-NORTHERN,

             Defendants and Respondents.




APPEAL FROM:       District Court of the Twelfth Judicial District,
                   In and for the County of Hill,
                   The Honorable John Warner, Judge presiding.



COUNSEL OF RECORD:

             For Appellant:

                   Douglas Giebel, pro se,
                   Big Sandy, Montana
             For Respondents:

                   LeRoy H. Schramm, Legal Counsel,
                   Montana University System, Helena, Montana



                                   Submitted on Briefs:         October 24, 1996
                                                     Decided:   December 10, 1996
Filed:




                                         CIerI;.
Justice Terry N. Trieweiler delivered the opinion of the Court.

        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following 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 State Reporter Publishing Company and West Publishing

Company.

        On June 13,       1995,    Douglas Giebel filed a complaint in the

District Court for the Twelfth Judicial District in Hill County, in

which     he    alleged    that    he    was       denied   fair   consideration    for

employment,       was     denied    an    appropriate        grievance    hearing    in

violation of his rights to due process and equal protection, and

was injured by reliance on a promise of employment,                      retaliation,

blacklisting, malice, defamation, fraud, and a denial of freedom of

speech.        Both Giebel and the University System defendants filed

motions    for    summary    judgment.             The District    Court granted the

defendants'      motion.      Giebel appeals the District Court's order

which denied his motion for summary judgment and which granted the

defendants' motion for summary judgment.                     We affirm the order of

the District Court.

     We address seven issues on appeal:
     1.        Did the District Court err when it concluded that Giebel

was not deprived of due process by MSU-Northern's employment search

and hiring process?




                                               2
      2.     Did the District Court err when it concluded that Giebel

was not denied equal protection by MSU-Northern's employment search

and hiring process?

      3.    Did the District Court err when it concluded that Giebel

could not maintain a cause of action against MSU-Northern for a

breach of the covenant of good faith and fair dealing?

      4.    Did the District Court err when it concluded that Giebel

had failed to present a primafacie case of fraud?

      5.    Did the District Court err when it concluded that Giebel

had not properly raised a claim of malice?

      6.    Did the District Court err when it concluded that it had

no general right of review of university administrative decisions

or their administrative processes relating to these decisions?

      7.    Did the District Court err when it concluded that Giebel

had failed to exhaust his administrative remedies?

                              FACTUAL BACKGROUND

      On    June    15,     1993,     Montana      State    Uni versi ty-Northern

(MSU-Northern) sent a letter to Douglas Giebel to confirm that he

had been hired as an assistant professor in the Theater jSpeech
Communication Division of the Department of Humanities and Social
Services pursuant to a "one-year temporary professional contract

for   the   1993   school    year."       The   letter     made   clear   that    the

appointment    "extends      for    its    fixed   duration       and   carries   no

implication of reappointment."            The contract which accompanied the

letter of appointment indicated the term of Giebel's employment was

from August I, 1993 to May 31, 1994.               On April 5, 1994, near the

                                          3
end of Giebel's one-year term of employment,                           MSU-Northern sent

Giebel    another      letter confirming the                school's    intent    to    allow

Giebel's contract to expire.             The letter stated:            "[YJ our temporary

appointment.               will be terminated as of the end of the 1993-94

academic     year     in    accordance         with    the    initial    terms     of    your

appointment."

        In the spring of 1994, the MSU-Northern campus conducted a job

search to secure a permanent faculty member for the position held

temporarily      by        Giebel   in     the        Theater/Speech          Communication

Department.      Giebel applied for the permanent position, and was one

of 100 applicants considered for the job.

        The search committee for the permanent position was chaired by

Dr. Stephen Sylvester, the head of the Department of Humanities and

Social    Services.         Syl vester had become             acquainted with Giebel

during the 1993-1994 academic year.                    During that time, Sylvester

was generally satisfied with the Giebel's work performance and

anticipated that Giebel would have an excellent chance of being

hired for the permanent position.                    Sylvester informed Giebel that

his prospects for being hired were good.

        Between the time the permanent position was advertised in

March    1994,   and       the   time    the       search    committee    finalized      its

recommendation        in    mid-May,     however ,      Sylvester       had    changed   his

position and opposed Giebel's candidacy for the job.                             Sylvester

made his    opposition to Giebel               known to other search committee

members and recommended that Giebel not be granted an interview for

the position.       In an affidavit filed with the District Court after

                                               4
the selection process was complete, Sylvester cited several factors

which led to his opposition of Giebel for the permanent position,

including Giebel's trip to New York City with the student member of

the search committee and his presentation of a fictitious award to

that     student    during    the      University's    Awards      Day    convocation;

Giebel's deteriorating relationship with a tenure-track member of

the Theater/Speech Communication Department;                    and the     fact     that

Giebel's application for the permanent position was less impressive

than those submitted by other candidates.

       In mid-May 1994, after learning that he had not been selected

for the permanent position, Giebel wrote to the Commissioner of

Higher    Education and voiced his              objection to       the    University's

selection process.           In his response,         the Commissioner informed

Giebel that" [b]efore grievances may be submitted directly to the

Commissioner       of   Higher    Education     they must     be    filed with       the

college    chancellor."          The    Commissioner referred Giebel           to    the

Regent's appeals policy.

       On June 10,      1994, Giebel filed a grievance pursuant to the

campus    grievance      procedure.         Following     a   hearing       before    an
eight-person grievance committee on July 14, 1994, MSU-Northern's
Chancellor issued a written decision in which he denied Giebel's

grievance.         Nearly    four      months    later,   Giebel         appealed    the

Chancellor's decision to the Commissioner on Higher Education.                       The

Commissioner denied Giebel's appeal on the grounds that it had not

been timely filed pursuant to Montana University System Policy

203.5.2, which requires that an appeal be filed "within 30 days of

                                            5
the .        [campus] decision."         Giebel appealed the Commissioner's

decision to the Board of Regents; however,              on May 19,    1995,    the

Regents declined to entertain the appeal.

        On June 13, 1995, Giebel filed two complaints in the Twelfth

Judicial District Court in which he alleged that he was improperly

denied fair consideration for employment, was denied an appropriate

grievance hearing in violation of his rights to due process and

equal protection,       and was    injured by reliance on a          promise of

employment, retaliation, blacklisting, malice, defamation, fraud,

and a denial of freedom of speech.           Both Giebel and the University

System defendants filed motions for summary judgment.             The District

Court concluded that there were no genuine issues of material fact

and that the University System defendants were entitled to judgment

as a matter of law.        The court therefore granted the University

System defendant's motion for summary judgment and denied Giebel's

cross-motion for summary judgment.

                               STANDARD OF REVIEW

        In this case, the District Court granted summary judgment to

MSU-Northern and dismissed each of Giebel's claims.                  This Court

reviews a district court's grant of summary judgment pursuant to

Rule 56,    M.R.Civ.P.,   based on the same criteria applied by the

district court.     StateFarmFire&Cas.Co.v.Powell (1995),274 Mont.             92,

95,   906   P.2d 198,   200.      Rule   56 (c),   M.R.Civ.P.,   provides     that

summary judgment is proper only when "there is no genuine issue as

to any material fact and .               the moving party is entitled to a

judgment as a matter of law."

                                         6
                                       ISSUE 1

     Did the District Court err when it concluded that Giebel was

not deprived of due process by MSU-Northern's employment search and

hiring process?

     Giebel maintains that MSU-Northern denied him the right to due

process     as    guaranteed    by    both       the   Montana     and    United      States

Constitutions.        Both the Fourteenth Amendment to the United States

Constitution,        and   Article     II,        Section    17,     of        the   Montana

Constitution,        prohibit   a    governmental         entity    from       depriving   a

person of life,        liberty, or property without due process of law.

In this case, Giebel contends that the University deprived him of

his "liberty right to contract for employment through the search

process and his right to protection from invidious discriminatory

actions."        Giebel cites BoardofRegentsv. Roth (1972), 408 U.S. 564, to

support his broad definition of the term "liberty interest."

     In Roth,      the United States Supreme Court addressed the issue

of whether the nonrenewal of a nontenured state teacher's contract

without   a      hearing constituted the deprivation of                    a    liberty or

property interest. In evaluating the teacher's "property interest, "

the Court stated:

     To have a property interest in a benefit, a person
     clearly must have more than an abstract need or desire
     for it. He must have more than a unilateral expectation
     of it.   He must, instead, have a legitimate claim of
     entitlement to it.



                        [T] he respondent's            "property" interest in
     employment        at Wisconsin State              University-Oshkosh was


                                             7
        created and defined by the terms of his appointment.
        Those terms secured his interest in employment up to June
        30, 1969.   But the important fact in this case is that
        they   specifically provided    that   the  respondent's
        employment was to terminate on June 30.     They did not
        provide for contract renewal absent "sufficient cause."
        Indeed, they made no provision for renewal whatsoever.

              Thus, the terms of the respondent's appointment
        secured absolutely no interest in re-employment for the
        next year.   They supported absolutely no possible claim
        of entitlement to re -employment. Nor, significantly, was
        there any state statute or University rule or policy that
        secured his interest in re-employment or that created any
        legi timate claim to it.     In these circumstances, the
        respondent surely had an abstract concern in being
        rehired, but he did not have a property interest sufficient
        to reauire the University authorities to give him a
        hearing when they declined to renew his contract of
        employment.

Roth,   408 U.S. at 577-78 (footnote omitted)            (emphasis added).       The

Court also declined to find a liberty interest in the nonrenewal of

the teacher's one-year contract.               Specifically, the Court stated:

"It stretches the concept too far to suggest                     that a    person is

deprived of 'liberty' when he simply is not rehired in one job but

remains as free as before to seek another."                   Roth, 408 U.S. at 575

(citing Cafeteria Workersv. McElroy (1961), 367 U.S. 886, 895-96).

        Based on the principles of Roffi, the District Court concluded

that Giebel was not deprived of either a liberty interest or a

property interest by the expiration of his one-year contract and by

the     Uni versi ty' s   decision   not   to    hire   him    for   the   permanent

tenure-track position.         See also Lelandv. Heywood (1982), 197 Mont. 491,

643     P.2d 578.     The court noted that,         like the teacher in Roth,

Giebel was hired pursuant to a one-year contract for employment;


                                           8
that his employment expired pursuant to the terms of his contract;

and that that expiration did not provide Giebel with a legitimate

claim of entitlement which would rise to the level of a protected

interest.           The   court   further        noted   that     Sylvester's    alleged

assurances of future employment could not form the basis for a

claim of entitlement because "college administrators in this state

have    no   authority      to    contract       with    faculty    members     on   terms

different than those approved by the Board of Regents."                       Leland, 197

Mont.    at 497,      643   P. 2d at 581.         The court therefore held that

Giebel was not unconstitutionally deprived of life,                       liberty,      or

property without due process of the law.

        We   hold    that   the District         Court    correctly concluded        that

Giebel had neither a liberty nor a property interest in continued

employment with MSU-Northern.           We therefore uphold that portion of

the court's summary judgment order which concluded that Giebel was

not deprived of due process by MSU-Northern's employment search and

hiring process.

                                       ISSUE 2

        Did the District Court err when it concluded that Giebel was

not denied equal protection by MSU-Northern's employment search and

hiring process?

        Giebel asserts that he was denied equal protection of the law

by     MSU-Northern's        employment          search     and     hiring      process.

Specifically, Giebel maintains that Sylvester's opposition to his

candidacy placed him at a serious disadvantage during the search

committee's deliberations.           The District Court, however, summarily

                                             9
denied Giebel's equal protection claim on the grounds that Giebel

had   neither      identified   a   "class"    of   individuals   who   had   been

disadvantaged by the University's search and hiring practices nor

asserted     the    deprivation     of   a    fundamental   right   from      those

practices.

      This Court has previously evaluated an equal protection claim

from a University System faculty member who claimed a denial of

equal protection based on the University's failure to grant him

tenure.    Akhtarv. VandeWeter;ng (1982),197 Mont. 205,642 P.2d 149.

In Akhtar, we stated:

           Appellant claims he was discriminated against in
      that he was treated differently from other tenure
      candidates because a different standard of excellence was
      applied to his tenure evaluation than to others.

           We agree with the Fourth Circuit which found that
      "not every difference in promotion treatment rises to the
      level of constitutional deprivation either under equal
      protection or due process." Clarkv. WhWng (4th Cir. 1979),
      607 F.2d 634, 638.     In Clark, an associate professor
      claimed he was denied equal protection because different
      standards   were  used   in  evaluating his     promotion
      qualifications than were used in passing on promotions of
      other faculty members.



            President Van de Wetering testified that the tenure
      evaluations demanded a weighing and balancing of all the
      areas of consideration for all the candidates. Although
      there    was   sharp   disagreement   among   appellant's
      colleagues, the final determination was that appellant's
      professional performance did not meet the overall
      professional academic standards needed to grant tenure.

           The District Court concluded the denial of tenure
      was not arbitrary but was an exercise of academic
      judgment.  It also found no evidence had been presented
      which indicated the denial resulted from discrimination


                                         10
       or that the procedures followed were intended to penalize
       a certain class. We agree.

Akhtar, 197 Mont. at 218-20, 642 P. 2d at 157.

       In this case,      as in Akhtar,    no evidence was presented which

indicated that      the   decision not         to   hire Giebel    "resulted from

discrimination or that the procedures followed were intended to

penalize a certain class."           First, as the District Court correctly

noted, Giebel has not asserted that he was a member of a particular

"class"   of     individuals which was disadvantaged by the school's

hiring process.      Second, there is no evidence of any discrimination

in the committee's decision to hire another candidate.                   There was

ample evidence presented to the District Court to establish that

that    chosen    candidate    was    better        qualified    and   had   a    more

impressive resume than Giebel.

       Therefore,    because we hold that Giebel did not demonstrate

that the search committee's procedures were discriminatory or that

those procedures were intended to penalize a                    certain class,      we

affirm that portion of the District Court's summary judgment order

which concluded that        "Giebel's complaint          is   insufficient       for a

claim of a violation of his equal protection rights."

                                      ISSUE 3

       Did the District Court err when it concluded that Giebel could

not maintain a cause of action against MSU-Northern for a breach of

the covenant of good faith and fair dealing?

       In his amended complaint, Giebel asserted that MSU-Northern's

search and hiring process failed to "conform to the covenant of

                                          11
good faith and fair dealing."               Specifically, Giebel maintained that

the University did not follow its established hiring policies and

did not act in good faith during the hiring process.                          The District

Court, however, dismissed Giebel's claim on the ground that a claim

of a breach of the covenant of good faith and fair dealing "may

arise only from a            termination of       employment."         Because    the     court

determined that Giebel was merely a job applicant for a permanent

position with the University,                 the court concluded that Giebel's

claim could not form the basis for recovery.

      In this case, Giebel was employed by MSU-Northern pursuant to

a one-year employment contract and was specifically informed that

the term of his employment                 "extends for its fixed duration and

carries no implication of reappointment."                         In addition, prior to

the   expiration        of   his    fixed     employment          contract,      Giebel    was

notified     of     the      University's           intention         to   terminate       his

appointment       "as   of    the    end     of    the    1993 - 94    academic     year     in

accordance with the initial terms of                     [his]    appointment."         Giebel

does not, however, challenge the University's decision to allow his

one-year     contract        to    expirej        instead,       Giebel    challenges      the

University's allegedly unfair treatment of him as a job applicant

for a permanent position.             Neither this Court nor the Legislature

has extended the covenant of good faith and fair dealing to the

hiring process.         We will not do so on the basis of the facts in

this case.




                                              12
     Therefore, we affirm the District Court's decision to grant

summary    judgment and dismiss          Giebel's claim for breach of             the

covenant of good faith and fair dealing.

                                       ISSUE 4

     Did the District Court err when it concluded that Giebel had

failed to present a primafacie case of fraud?

     In his original complaint before the District Court, Giebel

generally     alleged      that   he   had    been   defrauded   by    Sylvester's

guarantees of      employment.         More    than five months       later,    after

discovery had closed and the University had filed a motion for

summary judgment,       Giebel    filed a      document entitled,       "Motion to

Accept Amended Complaint II."                In that document,   Giebel alleged

with particularity that the search committee had been defrauded by

a secret ballot which had been employed during the vote on Giebel's

candidacy.    Before the District Court could rule on Giebel's motion

to amend his complaint, however, Giebel filed a cross-motion for

summary judgment.       Giebel never renewed or briefed his motion and

the District Court neither ruled on the motion nor accepted that

document as a part of the record.                In an exceptional effort to
accommodate Giebel, the District Court analyzed Giebel's claim of
fraud as     set   forth    in both his original        complaint      and     in his

attempted amendment.        The court concluded, however, that (1) Giebel

could not allege fraud based on any statements by Sylvester of a

promise of future intent and (2) that Giebel did not have standing

to allege fraud on behalf of the search committee.                       The court



                                         13
therefore granted summary judgment to MSU-Northern and dismissed

Giebel's claim of fraud.

       Rule 9(b), M.R.Civ.P., provides that" [i]n all averments of

fraud .         the circumstances constituting fraud.                . shall be

stated with particularity."          In his original complaint,            Giebel

alleges in only the most general of terms that he was defrauded by

Sylvester's promises of future employment.              That allegation was

insufficient    to   satisfy either Rule       9 (b),   M.R.Civ.P.,     or    this

Court's requirement     that a plaintiff must allege the requisite

elements of fraud.     See, e.g., Barrett v. Holland & Hart (1992), 256 Mont. 101,

106,   845 P.2d 714,   717 i Grenz v. Medical Management Northwest (1991),     250

Mont. 58, 63,    817 P.2d 1151, 1154.        Furthermore, as the District

Court correctly noted, even if Giebel's claim had been pled with

the requisite particularity,        "[t]he rule is that fraud cannot be

based on and allegation of a promise of future intent."              Braun v. Glade

Valley School (N.C. Ct. App. 1985), 334 S.E.2d 404, 407.           See also Davis v.

LDS Church (1993), 258 Mont. 286, 2 93, 852 P. 2 d 640, 644 i Marlin v. Drury

(1951), 124 Mont. 576, 584, 228 P.2d 803, 807.

       We hold that the District Court properly dismissed Giebel's

original claim of fraud based on the fact that the allegation of
fraud was not pled with the requisite particularity, and based on

the general rule that promises of future intent cannot form the

basis for a claim of fraud.          We further hold that the District

Court properly dismissed Giebel's amended claim of fraud based on

its conclusion that Giebel did not have standing to allege fraud on


                                      14
behalf of the search committee.                      Such a holding is consistent with

the settled law that "if a false statement is made to one person to

induce him to act, the balance of the world has no legal right to

rely on it."      37 Am.       Jur.          2d Fraud and Deceit       §    244 p.    324    (1968)

(citations omitted).           We       therefore affirm that portion of                        the

District     Court's    order       which           granted      the       University       summary

judgment and dismissed Giebel's claim of fraud.

                                              ISSUE 5

     Did the District Court err when it concluded that Giebel had

not properly raised a claim of malice?

     In this case, Giebel has alleged "malice" as a separate cause

of action.     However,       as the District Court noted in its summary

judgment order,       "malice, by itself does not form the basis for a

separate cause of action."

     "Malice     is    basically              no     more    than      a    state     of    mind."

52 Am. Jur. 2d Malice     §    I,       p.     161      (1970)   (citation omitted).            As

such, it cannot alone form the basis for a cause of action.                                    The

existence of malice may either serve to prove a necessary element
of a particular offense or cause of action,                                or may serve as a

factor to enhance damages.                   See, e.g., First Bank v. Clark (1989),    236 Mont.

195, 204, 771 P.2d 84, 90 (requiring existence of malice as element

of malicious prosecution)           i    Section 27-1-221, MCA (providing that

punitive damages may be available when actual malice is proven) .

It is, in fact, well established that" [a] legally permissible act

does not give rise to an actionable injury simply because it is


                                                   15
performed with evil intent or an improper motive."                               1 Am. Jur. 2d

Actions § 54, p. 758        ( 19 94) .

      In Montana,         "malice" is defined as a "wish to vex, annoy, or

injure     another        person    or    an     intent      to     do   a    wrongful      act,

established     either by proof             or presumption of                law."    Section

1-1-204(3), MCA.           However, whether Sylvester "intended to injure

Giebel," as Giebel alleges, is irrelevant unless that state of mind

led to conduct which gives rise to a judicially cognizable claim.

As   the   District        Court    correctly        concluded:          "Mr .    Sylvester's

actions in not supporting Mr. Giebel as a candidate for the open

tenure faculty position, and his alleged actions of discouraging

other members        of    the     search committee              from pursuing him as          a

candidate, do not constitute an illegal, impermissible act against

Mr. Giebel."

       We therefore hold that the District Court's conclusion that

Giebel's allegation of malice did not state a claim for which he

was entitled to recover, is correct.                      We affirm that portion of the

District Court's summary judgment which dismissed this claim.

                                          ISSUE 6
      Did the District Court err when it concluded that it had no
general right of review of university administrative decisions or
their administrative processes relating to these decisions?

      When   Giebel        was   not     hired      for    the    permanent       position    at

MSU-Northern,    he        filed    an    internal         grievance     pursuant      to    the

University System grievance procedure.                           Giebel's grievance was

denied by the MSU-Northern Chancellor on July 25, 1994.                              Giebel's

                                               16
appeal of his grievance was denied by the Commissioner of Higher

Education on March 3,          1995, on the ground that it was untimely.

After the Board of Regents declined to entertain Giebel's appeal of

the        Commissioner's    decision,   Giebel        attempted    to    invoke    the

jurisdiction of        the   District    Court    to    review     the   University's

policies and its grievance and appeals process.                          In its order

granting the Uni versi ty' s motion for summary judgment, however, the

court concluded that there exists no general statutory right of

review of a University System's administrative actions.

           Ordinarily, administrative decisions are subject to judicial

review pursuant to the Montana Administrative Procedure Act (MAPA).

See   §§   2-4-101 through -711, MCA.     Pursuant to      §   2-4-102 (2) (a) (iii) ,

MCA, however, both the Board of Regents and the Montana University

System are exempt from MAPA's provisions. Therefore, no independent

right of       judicial review of University administrative decisions

exists pursuant to MAPA, nor has that right been created by some

other means.       "In Montana, only the legislature may validly provide

for judicial review of agency decisions."                  Nye v. Department of Livestock

(1982), 196 Mont. 222, 226, 639 P.2d 598, 498, 500.                      As evidenced

by MAPA, however, the Legislature has chosen not to provide for a

general review of University System decisions.

           As made clear by the District Court,            although no specific

right of judicial review is provided by MAPA, a plaintiff may still

challenge a University System administrative decision by alleging

a judicially-cognizable cause of action.                 In this case, the court



                                         17
merely      refused       to    review      the    general       decision    reached       by   the
University       System;         the    court      did,        however,    address     Giebel's
specific       allegations         against        the    University       when   it    reviewed
Giebel's       claims      of     denial      of       due     process,    denial     of    equal

protection, denial of freedom of speech, breach of the covenant of

good    faith       and    fair    dealing,            fraud,    defamation,        intentional

infliction of emotional distress, and blacklisting.

       We hold that the District Court correctly concluded that it

had    no   general        right       of   review       of     University    administrative

decisions      or    their      administrative            processes       relating    to    those

decisions.       We therefore affirm that part of the District Court's

summary judgment order in which the court declined to review the

general administrative decision process of the Montana University

System.

                                             ISSUE 7

       Did the District Court err when it concluded that Giebel had

failed to exhaust his administrative remedies?

       In this case, the District Court held that Giebel had "failed

to    follow    both      common       law and         state    statutory mandates          which
require that he exhaust all administrative remedies before bringing
a claim in district court."                 Specifically, the court concluded that

Giebel had failed to abide by both the Board of Regent's appeals

policy and the common law doctrine of exhaustion of remedies.                                   The

court therefore concluded that several of Giebel's claims which

were informally alleged in Giebel's numerous and lengthy filings

were barred by the doctrine of exhaustion.

                                                  18
     It is the general policy of this state, as set forth in both

statute and case       law,        to require a       complainant         to exhaust his

administrative remedies before he may access the judicial system.

The Administrative Procedure Act, in fact, allows judicial review

only to "[a] person who has exhausted all administrative remedies

available within the agency."               Section 2-4-702, MCA.             Because the

University System is exempted from the Administrative Procedure

Act, Giebel's claim is subject to only the common law doctrine of

exhaustion,    which        this    Court    has     recognized      as    "the     general

principle that ordinarily administrative remedies must be exhausted

before applying for judicial review."                 State ex rei. Sletten Constr. Co. v. Great

Falls (1973), 163 Mont. 307, 311, 516 P.2d 1149, 1151.

     In   this      case,     Giebel     failed       to    avail     himself       of     the

appropriate        administrative           remedy     in     a      timely        fashion.

Specifically, Giebel failed to comply with Section 203.5.2 of the

Montana University System Policy, which requires that an appeal of

a campus grievance decision must be filed within thirty days of

that decision.        Instead,       although the Chancellor's decision was

rendered on July 25, 1994, Giebel did not file his appeal of that

decision until November 22,             1994.      Although Giebel corresponded

with the Commissioner of Higher Education several times during the

intervening months,         the Commissioner responded with only general

statements    of    policy and continuously advised Giebel                        that     his

appeal would have to conform with Section 203.5.2 of the University




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System Policy.       The Commissioner denied Giebel's appeal on March 3,

1995, on the ground that the appeal was not timely filed.

        It is well established that failure to make a timely appeal of

an administrative decision may result                       in a    failure    to exhaust

administrative remedies.              As one treatise has noted:

        If the petitioner once had an opportunity to pursue a
        then-available administrative remedy within a specified
        time period, but the petitioner did not pursue the remedy
        within the time it was available, the agency action may
        be final by the time the court decides whether to review
        the action. Yet, in that situation, the court still may
        decline to review the final agency action because of the
        petitioner's failure to have exhausted the administrative
        remedies that were previously available.

Kenneth Culp Davis & Richard J.                   Pierce,    Jr.,    Administrative Law

Treatise,     vol.    II,     §    15.1    at     306   (1994)       (citation   omitted)
(emphasis     added).        The    Montana        University       System    Policy   also

reflects this proposition.                 It states:        "When a party fails         to

exercise the appeal rights guaranteed by this policy the party

accepts the lower level decision as final and waives the right to

contest the matter further."                 Montana University System Policy,

Section 203.5.2.

        In this case,       the District Court correctly concluded that
Giebel did not exhaust his administrative remedies because he did
not file a timely appeal of the Chancellor's decision.                            On that
basis,    the court correctly concluded that Giebel had waived his

right    to   contest       several       claims    which     were    resolved    by   the

University Chancellor and the                   campus grievance        committee.      We

therefore affirm that portion of the District Court's decision



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which concluded that several of Giebel's claims were barred by the

doctrine of exhaustion and could not be addressed by the court.

     Based on our conclusions that there are no genuine issues of

material   fact   presented in this   case,   and that   the   Uni versi ty

System defendants are entitled to judgment as a matter of law, we

affirm the District Court's order which granted the defendants'

motion for summary judgment and denied Giebel's cross-motion for

summary judgment.




We concur:




     Justices




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