Montana Code 23-5-137. Judicial review
23-5-137. Judicial review. (1) (a) A person aggrieved by a final order of the department may obtain a review of the order in district court by filing with the court, within 30 days after entry of the final order, a written petition requesting that the order be modified or set aside in whole or in part.
Terms Used In Montana Code 23-5-137
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Oral argument: An opportunity for lawyers to summarize their position before the court and also to answer the judges' questions.
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Remand: When an appellate court sends a case back to a lower court for further proceedings.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(b)A copy of the petition must be served upon the department at the same time. When the department receives the copy of the petition, it shall certify and file in court a copy of the filing, testimony, and other evidence upon which the final order was entered by the department. When these have been filed with the court, the court has exclusive jurisdiction to affirm, modify, enforce, or set aside the final order in whole or in part. A temporary cease and desist order from the department may remain in effect until a hearing has been held and a final order has been issued pursuant to 23-5-136.
(2)(a) The review must be conducted by the district court without a jury and must be confined to the record. In a case of alleged irregularity in procedure before the department not shown in the record, proof may be taken by the court. The court, upon request, shall hear oral argument and receive written briefs.
(b)The court may not substitute its judgment for that of the department as to the weight of the evidence on questions of fact. The court may affirm the decision of the department or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(i)in violation of a constitutional or statutory provision;
(ii)in excess of the statutory authority of the department;
(iii)made upon unlawful procedure;
(iv)affected by other error of law;
(v)clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
(vi)arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(vii)inadequate because findings of fact, upon issues essential to the decision, were requested but not made.
(3)The commencement of proceedings under this section, unless specifically ordered by the court, may not operate as a stay of the department’s final order.