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                                                               No. 01-435

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2001 MT 304N



                                                      MICHAEL S. ROGERS,

                                                      Petitioner and Appellant,

                                                                      v.

                                        BOARD OF COUNTY COMMISSIONERS,

                                        YELLOWSTONE COUNTY, MONTANA,

                                                   Respondent and Respondent.

                         APPEAL FROM: District Court of the Thirteenth Judicial District,

                                             In and for the County of Yellowstone,

                                    The Honorable Gregory R. Todd, Judge presiding.

                                                    COUNSEL OF RECORD:

                                                             For Appellant:

                                       Michael S. Rogers (pro se), Worden, Montana

                                                            For Respondent:

                  Kevin R. Peterson, Deputy Yellowstone County Attorney, Billings, Montana

                                           Submitted on Briefs: December 6, 2001
                                               Decided: December 28, 2001

                                                                   Filed:


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                                    _________________________________________

                                                                    Clerk


Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 The Petitioner, Michael S. Rogers, filed a petition which was incorrectly denominated a
"writ of mandamus" in the District Court for the Thirteenth Judicial District in
Yellowstone County in which he sought a writ compelling the Respondent, Yellowstone
County Board of County Commissioners, to remove obstructions from a right of way in
Worden, Montana. Based on Rogers' failure to comply with procedural requirements and
the District Court's conclusion that the petition was without merit, the District Court
denied Rogers' petition. Rogers appeals the dismissal of his petition. We affirm in part and
reverse in part the order of the District Court.

¶3 The sole issue on appeal is whether the District Court erred when it denied Rogers'
petition for a writ of mandamus.

                                                FACTUAL BACKGROUND

¶4 Michael S. Rogers resides in Worden, Montana, an unincorporated community in
Yellowstone County. Rogers does not maintain a registered vehicle and it is, therefore,
necessary that he walk to the grocery store and post office.

¶5 From Rogers' house, the most direct route to the grocery store and post office traverses
Lewis Avenue, a right of way maintained by the Yellowstone County Road Department.
In the spring of 2001, Rogers wrote several letters to the Commissioners regarding
obstructions along Lewis Avenue created by adjacent landowners. According to Rogers,
these hazardous obstructions prevent pedestrians from walking along the side of the road
in two particular areas. In response to one of Rogers' inquiries, Commissioner Reno
indicated that Lewis Avenue appeared passable and advised Rogers to contact the local

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sheriff with any further concerns.

¶6 On April 25, 2001, Rogers, appearing pro se, filed a document entitled "writ of
mandamus," which we construe as a petition for relief, in which he requested that the
District Court order the Commissioners to remove the hazardous obstructions. The District
Court denied Rogers' petition on procedural grounds. On April 30, 2001, Rogers filed the
same petition in the District Court with an accompanying affidavit in which Rogers
attested to the truth of the matters contained in his petition. On May 1, 2001, the District
Court denied Rogers' petition on procedural grounds for a second time and also concluded
that the petition was without merit. Rogers appeals the order of the District Court which
denied his petition for a writ of mandamus.

                                                  STANDARD OF REVIEW

¶7 The issuance or denial of a writ of mandamus calls for a conclusion of law which we
review to determine if it is correct. Common Cause of Montana v. Argenbright (1996), 276
Mont. 382, 390, 917 P.2d 425, 429.

                                                            DISCUSSION

¶8 Did the District Court err when it denied Rogers' petition for a writ of mandamus?

¶9 Pursuant to § 27-26-102, MCA, the following two-part standard applies to the issuance
of a writ of mandamus: (1) the writ is available when the party requesting it is entitled to
the performance of a clear legal duty by the party against whom the writ is sought; and (2)
if there is a clear legal duty, the district court must grant the writ if there is no plain,
speedy, and adequate remedy available in the ordinary course of law. Common Cause of
Montana, 276 Mont. at 390, 917 P.2d at 429-30. Title 27, Chapter 26, Part 2, MCA, sets
forth the procedure one must follow to obtain, serve, and enforce a writ of mandamus.

¶10 The District Court denied Rogers' petition because of its conclusion that Rogers
"failed to comply with the procedural requirements to obtain a writ of mandamus."
Rogers, acting pro se, argues that he should be accorded some latitude rather than be held
to strict adherence to procedural rules.

¶11 The District Court concluded that Rogers' petition was deficient because, among other
things, it did not comply with §§ 27-26-201 and -202, MCA. Section 27-26-201, MCA,

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requires that the writ be issued upon affidavit, on the application of the party beneficially
interested. Section 27-26-202, MCA, provides that "the notice of the application, when
given, must be at least 10 days or a shorter time, in the discretion of the court or judge."

¶12 While § 27-26-202, MCA, is not a model of clarity, we must construe it, if possible, in
a manner that affords due process. Doing so, we conclude that § 27-26-202, MCA,
requires notice of a petition for a writ be given to the named respondent. Here, Rogers
petitioned the District Court to order an affirmative act, i.e., to compel the Commissioners
to remove the alleged obstructions from Lewis Avenue. Yet, the Commissioners were not
notified of Rogers' petition before the District Court. Therefore, we conclude that Rogers
did not comply with § 27-26-202, MCA, when he filed his petition. While pro se litigants
may be given a certain amount of latitude, that latitude cannot be so great that it deprives
the party from whom relief is sought an opportunity to respond. Therefore, we conclude
that the District Court did not err when it denied Rogers' petition for failure to give notice
to the Commissioners and we need not decide whether Rogers' affidavit incorporating his
petition by reference was adequate or whether other procedural conclusions drawn by the
District Court were correct. We do note however, should this matter reappear before the
District Court, that the procedural requirements of § 27-26-203, MCA (referring to the
contents of the writ), and § 27-26-205, MCA (referring to service of the writ), do not
pertain to the petition itself.

¶13 The District Court also stated that the writ of mandamus is not an appropriate remedy
for Rogers because he cannot comply with the requirements of § 27-26-102(2), MCA.
Section 27-26-102(2), MCA, provides that a writ of mandamus must be issued in all cases
in which there is not a plain, speedy, and adequate remedy in the ordinary course of law.
The District Court reasoned that it should not issue a writ of mandamus because Rogers
"has a plain, speedy and adequate remedy . . . to walk on the other side of Lewis Avenue,
walk around the pile of cement, or use an alternate route." Clearly, § 27-26-102(2), MCA,
refers to an alternative legal remedy. Simply walking around a pile of cement is not the
type of alternative legal remedy envisioned in § 27-26-102(2), MCA. However, we
conclude that Rogers' allegations did not satisfy the requirements of § 27-26-102(2),
MCA, because he did not allege that he was without a legal remedy. Therefore, the
District Court would have been correct to dismiss Rogers' claim for failing to state facts
which entitle him to relief.

¶14 The District Court also addressed the merits of Rogers' claim that the Commissioners
had a duty to remove obstructions from Lewis Avenue pursuant to § 7-14-2133, MCA.

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Rogers took photographs of the purported obstructions on Lewis Avenue and attached
them to his petition. After it reviewed the photographs, the District Court concluded that
"[b]y the plaintiff's own pictures, the pile of cement is not on a county road and the county
road is not obstructed." Therefore, the District Court found no violation of § 7-14-2133,
MCA. Rogers insists the District Court erred in this finding because the county road
extends beyond the lateral line of the roadway to the landowners' property line.

¶15 Section 7-14-2133, MCA, provides:

        (1) When a county road becomes obstructed, the board of county commissioners, or
        the county surveyor if the surveyor is in charge, shall remove the obstruction upon
        being notified of the obstruction.

        (2) This section does not hold the board or any member responsible or liable for
        anything other than willful, intentional neglect or failure to act.

        (3) For the purposes of this section, "obstruction" means an obstacle, such as a rock
        or a fallen tree, that if not removed would remain in the road indefinitely. The word
        does not mean snow, ice, or any other obstacle that will melt or dissipate on its own
        accord.

¶16 The District Court cited no authority for its conclusion that the road, as referred to in §
7-14-2133, MCA, is limited to the paved portion and Rogers was given no opportunity to
prove or demonstrate otherwise. Rogers' contention raises factual and legal issues which
could not be resolved on the state of the record. Accordingly, we conclude that the District
Court erred by deciding the merits of Rogers' petition based on the record before it and
that part of the District Court order is not binding on the parties in the future should there
be further litigation between the parties.

¶17 The District Court's dismissal of Michael S. Rogers' petition for a writ of mandamus
on procedural grounds is affirmed. The District Court's decision on the merits of Rogers'
petition is reversed.

                                                /S/ TERRY N. TRIEWEILER

                                                              We Concur:

                                                     /S/ KARLA M. GRAY
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                                                        /S/ JIM REGNIER

                                              /S/ W. WILLIAM LEAPHART

                                                            /S/ JIM RICE




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