447 P.3d 463
Mont.2019Background
- The Montana Public Service Commission (PSC) regulates garbage haulers via Class D carrier certificates; Big Foot applied for such a certificate to operate in Flathead County and Petitioners (existing haulers) protested.
- The PSC issued a Procedural Order scheduling discovery ("data requests") and designated staff attorneys Jennifer Hill‑Hart and Jeremiah Langston to act as examiners for discovery disputes; the order did not state the PSC itself would serve discovery.
- On March 19, 2018 Hill‑Hart (PSC staff attorney) served discovery on Petitioners the same day Big Foot served similar requests; Petitioners alleged improper coordination and ex parte communication between Hill‑Hart and Big Foot’s counsel Francesca diStefano.
- Email exchanges showed Hill‑Hart provided discovery examples and other materials to diStefano without Petitioners’ participation; Petitioners claimed this created a dual advocate‑judge role and violated due process and MAPA’s ex parte prohibition.
- The District Court issued a writ of prohibition barring the PSC from propounding discovery and a writ of mandate removing the case from the PSC and ordering appointment of an independent hearing examiner; the PSC withdrew its discovery and Hill‑Hart later left the agency.
- On appeal the Montana Supreme Court affirmed the writ of prohibition (finding ex parte communications and improper conduct by PSC counsel warranted halting discovery) but reversed the writ of mandate (concluding removal of the entire PSC and appointment of an independent examiner was an overbroad extraordinary remedy).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by issuing a writ of prohibition barring the PSC from propounding discovery | Petitioners: Ex parte communications and PSC counsel’s issuance of discovery created deprivation of due process; prohibition necessary because no adequate remedy existed | PSC/Big Foot: Agency investigatory role permits discovery; judicial review of final action would provide adequate remedy; not limited to purely adjudicative role | Court affirmed writ of prohibition: ex parte contact by PSC staff violated § 2‑4‑613 and Procedural Order; prohibition appropriate to prevent further harm |
| Whether the district court erred by issuing a writ of mandate removing the PSC and appointing an independent hearing examiner | Petitioners: PSC staff bias and ex parte contacts tainted the Commission; removal of the PSC and independent examiner required to protect due process | PSC/Big Foot: Writ of mandate is extraordinary; actions were by a staff attorney, not commissioners; MAPA procedures and exhaustion not followed; remedy was overbroad | Court reversed writ of mandate: no evidence commissioners engaged in misconduct; staff attorney left and discovery withdrawn; removing entire PSC and appointing independent examiner was overbroad |
Key Cases Cited
- Mont. Power Co. v. Pub. Serv. Comm’n, 671 P.2d 604 (1983) (agencies must afford fair and open hearings consistent with Due Process)
- State ex rel. Thomas v. Dist. Court, 731 P.2d 324 (1986) (standards for issuing writs of prohibition/mandamus and the two‑question test under § 27‑26‑102)
- Gilpin v. State, 812 P.2d 1265 (1991) (principle that administrative remedies ordinarily must be exhausted before judicial review)
- Wilson v. Dep’t of Pub. Serv. Regulation, 858 P.2d 368 (1993) (requirements and heavy burden for immediate judicial review under MAPA)