DA 10-0161

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 290

BNSF RAILWAY COMPANY, 

a Delaware corporation,

 Petitioner and Appellant,

 v.

CHAD CRINGLE and MONTANA DEPARTMENT OF 

LABOR AND INDUSTRY, HUMAN RIGHTS COMMISSION,

 Respondents and Appellees.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis & Clark, Cause No. BDV-2009-1016

Honorable Jeffrey M. Sherlock, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Benjamin O. Rechtfertig and Jeff Hedger, Hedger Friend, PLLC, Billings, 

Montana

For Appellees:

Terry N. Trieweiler, Trieweiler Law Firm, Whitefish, Montana (Chad 

Cringle)

Marieke Beck, Department of Labor and Industry, Helena, Montana 

Submitted on Briefs: October 6, 2010

 Decided: December 30, 2010 

Filed:

__________________________________________

Clerk

December 30 2010
2

Justice Brian Morris delivered the Opinion of the Court.

¶1 BNSF Railway Company (BNSF) appeals from the judgment of the First Judicial 

District Court, Lewis and Clark County, dismissing BNSF’s petition for judicial review. We 

reverse and remand.

¶2 We review the following issue on appeal:

¶3 Does the 14-day filing deadline in § 49-2-505(3)(c), MCA, deprive a district court of 

jurisdiction over matters arising between the parties after the deadline has expired?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The Montana Human Rights Bureau determined that BNSF unlawfully had 

discriminated against Chad Cringle (Cringle) when it denied him employment based solely 

on a statistical analysis of his height and weight ratio. BNSF appealed the decision to the 

Human Rights Commission (Commission) several days after the 14-day filing deadline of 

§ 49-2-505(3)(c), MCA, had expired. Both the Commission and the District Court have 

refused to hear BNSF’s reasons for missing the filing deadline based on their conclusion that 

§ 49-2-505(3)(c), MCA, has removed their subject matter jurisdiction.

¶5 BNSF conditionally had offered Cringle employment as a track laborer. BNSF later 

denied Cringle employment after reviewing his height and weight. BNSF determined that 

Cringle presented a risk of harm to himself or others based on a statistical analysis of 

Cringle’s height and weight. Cringle filed his complaint charging BNSF with unlawful 

discrimination in July 2008. 
3

¶6 The Human Rights Bureau found reasonable cause to believe that unlawful 

discrimination had occurred and forwarded the complaint for a contested case proceeding. 

The Human Rights Bureau’s hearing officer awarded summary disposition in favor of 

Cringle in May 2009. The hearing officer entered a final decision awarding damages to 

Cringle on September 2, 2009. The hearing officer also issued and served notice of the 

decision on September 2, 2009. 

¶7 BNSF filed a notice of appeal and a request for an extension of time with the 

Commission on September 22, 2009. Cringle objected to BNSF’s appeal and request for an 

extension of time. Cringle argued that the expiration of the 14-day filing deadline of § 49-2-

505(3)(c), MCA, had rendered final the agency’s decision. Cringle further argued that the 

filing deadline created a jurisdictional bar and deprived the Commission of authority to 

entertain BNSF’s untimely appeal. The Commission denied BNSF’s motion for an 

extension of time and dismissed BNSF’s appeal. The Commission did not hear evidence 

regarding BNSF’s reasons for missing the deadline. The Commission did not evaluate 

whether BNSF had good cause to support its motion and appeal.

¶8 BNSF filed a petition for judicial review in district court on November 2, 2009. 

BNSF argued that the Commission had authority to extend the 14-day filing deadline and 

had authority to hear BNSF’s reasons why an extension should have been granted. BNSF 

acknowledged that it had received the hearing officer’s final decision on September 3, 2009. 

 BNSF mentioned in its brief that it had missed the appeal deadline due to its staff misfiling 

the decision or failing to calendar the appeal deadline. 
4

¶9 Cringle moved to dismiss BNSF’s petition for lack of jurisdiction and failure to state a 

claim for which relief could be granted pursuant to M. R. Civ. P. 12(b)(1) and (6). Cringle 

relied on § 49-2-505(3)(c), MCA, to support his argument that the hearing officer’s decision 

had become “final” and “not appealable to the district court” when BNSF missed the 14-day 

filing deadline. The District Court agreed with Cringle, concluded that it lacked subject 

matter jurisdiction, and dismissed BNSF’s petition. 

¶10 Cringle then filed an M. R. Civ. P. 60(b) motion for relief on March 23, 2010. 

Cringle advised the court that though it did not have jurisdiction to set aside the 

Commission’s dismissal of BNSF’s appeal, it retained jurisdiction to enforce the hearing 

officer’s decision that had granted damages to Cringle and to award attorney fees. The court 

issued a nunc pro tunc order on March 29, 2010, to enforce Cringle’s award of damages and 

determine the amount of attorney fees that BNSF owed to Cringle. The court entered 

judgment for Cringle on April 9, 2010. BNSF now appeals the court’s conclusion that § 49-

2-505(3)(c), MCA, deprived the District Court of jurisdiction.

STANDARD OF REVIEW

¶11 We review for correctness a district court’s review of an administrative agency’s 

decision. N. Cheyenne Tribe v. Mont. Dept. of Envtl. Quality, 2010 MT 111, ¶ 19, 356 Mont. 

296, 234 P.3d 51. We review for correctness a district court’s conclusions of law. Id. We 

review de novo a district court’s determination regarding its subject matter jurisdiction. 

Koeplin v. Crandall, 2010 MT 70, ¶ 7, 355 Mont. 510, 230 P.3d 797. 

DISCUSSION
5

¶12 Does the 14-day filing deadline in § 49-2-505(3)(c), MCA, deprive a district court of 

jurisdiction over matters arising between the parties after the deadline has expired?

¶13 BNSF argues that § 49-2-505(3)(c), MCA, does not place a jurisdictional limitation 

on the district court to entertain a petition for judicial review. Cringle responds that the 

legislature properly circumscribed the court’s jurisdiction by enacting § 49-2-505(3)(c), 

MCA. We agree with BNSF. The legislature does not deprive the courts of subject matter 

jurisdiction when it enacts filing or notice deadlines. We have required accurate use of the 

term “jurisdiction” in our more recent history. Davis v. State, 2008 MT 226, ¶ 23, 344 Mont. 

300, 187 P.3d 654; Miller v. Eighteenth Jud. Dist. Ct., 2007 MT 149, ¶ 43, 337 Mont. 488, 

162 P.3d 121; State v. Clark, 2008 MT 317, ¶ 21, 346 Mont. 80, 193 P.3d 934 (Nelson &

Morris, JJ., concurring); Steab v. Luna, 2010 MT 125, ¶ 24, 356 Mont. 372, 233 P.3d 351. 

We have emphasized the importance of not confusing the situation of a claimant’s untimely 

filing with the district court’s subject matter jurisdiction. See Miller, ¶¶ 43-44; Davis, ¶¶ 19, 

22-23. 

¶14 We have concluded that “categorical time prescriptions” do not “withdraw” or 

“circumscribe” the district courts’ subject matter jurisdiction. Miller, ¶ 45; Davis, ¶ 23. In 

Davis, we overruled “Gray, Pena, Wells, and other cases to the extent they have held that the 

Legislature limited district courts’ subject matter jurisdiction” by enacting statutory time 

bars. Davis, ¶ 23. We since have consistently confirmed that statutory filing deadlines do 

not affect a district court’s subject matter jurisdiction. State v. Johnston, 2008 MT 318, 

¶¶ 18-19, 346 Mont. 93, 193 P.3d 925; Cobb v. Saltiel, 2009 MT 171, ¶ 33-34, 350 Mont. 
6

501, 210 P.3d 138. See also Lorang v. Fortis Ins. Co., 2008 MT 252, ¶¶ 58-62, 345 Mont. 

12, 192 P.3d 186; Clark, ¶¶ 19-32 (Nelson & Morris, JJ., concurring). 

¶15 The Montana Constitution establishes the subject matter jurisdiction of the district 

courts. Mont. Con. art. VII, § 4; Miller, ¶ 45. Article VII, Section 4(1) provides that district 

courts have “original jurisdiction [. . .] in all civil matters and cases at law and in equity.” 

Article VII, Section 4(2) also provides that “[t]he legislature may provide for direct review 

by the district court of decisions of administrative agencies.” Subject matter jurisdiction 

involves the court’s fundamental authority to hear and adjudicate cases or proceedings. 

Lorang, ¶ 57 (citations omitted). Subject matter jurisdiction “can never be forfeited or 

waived, nor can it be conferred by the consent of a party.” Davis, ¶ 20 (quoting Miller, ¶ 

44). 

¶16 We have called procedural time bars by several names. We characterized the oneyear time bar for post-conviction relief in § 46-21-102, MCA, as a “rigid, categorical time 

prescription.” Davis, ¶ 23. We also described the judicially-enacted 60-day time bar in 

Miller as “a categorical, but nonjurisdictional, time prescription.” Miller, ¶ 48. We have 

recognized the federal courts’ use of the term “claim-processing rule” to describe procedural 

time bars. Miller, ¶ 44 (referencing Kontrick v. Ryan, 540 U.S. 443, 454-56, 124 S. Ct. 906,

915-16 (2004)); Davis, ¶ 13 (referencing Eberhart v. U.S., 546 U.S. 12, 13, 126 S. Ct. 403, 

403 (2005). We also have referred to such a deadline as a “time limit,” “statute of 

limitation,” “time bar,” “procedural bar,” “rigid statutory prescription,” “period of 

limitation,” “notice requirement,” or “procedural requirement.” Molnar v. Mont. Pub. Serv. 
7

Commn., 2008 MT 49, ¶ 9, 341 Mont. 420, 177 P.3d 1048; State v. Redcrow, 1999 MT 95, 

¶¶ 34, 41, 294 Mont. 252, 980 P.2d 622; Johnston, ¶ 19; Rohlfs v. Klemenhagen, LLC, 2009 

MT 440, ¶¶ 29, 33, 354 Mont. 133, 227 P.3d 42. 

¶17 These “periods of limitation” are scattered throughout the Montana Code Annotated 

and are “too numerous to mention.” Rohlfs, ¶ 33 n. 2. We have distinguished these 

“categorical time prescriptions” from “jurisdictional provisions” that “delineat[e] the classes 

of cases (subject-matter jurisdiction) . . . falling within a court’s adjudicatory authority.” 

Miller, ¶ 43 (citing Kontrick, 540 U.S. at 455, 124 S. Ct. at 915). Regardless of the label, 

none of the judicially or statutorily created procedural deadlines deprive a district court of 

subject matter jurisdiction. Miller, ¶ 45; Davis, ¶ 23; Johnston, ¶ 21. 

¶18 Procedural time bars are affirmative defenses that are subject to forfeiture and waiver. 

Marias Healthcare Serv., Inc. v. Turenne, 2001 MT 127, ¶ 9, 305 Mont. 419, 28 P.3d 491; 

M. R. Civ. P. 8(c); Miller, ¶ 46; Clark, ¶ 25 (Nelson & Morris, JJ., concurring); Zipes v. 

Trans World Airlines, 455 U.S. 385, 393, 102 S. Ct. 1127, 1132 (1982). Generally, a litigant 

who properly raises a procedural time bar may expect the time bar to be applied “regularly

and consistently.” Redcrow, ¶ 34; Forsythe v. Leydon, 2004 MT 327, ¶ 9, 324 Mont. 121, 

102 P.3d 25 (stating that “a firm time-limit advances the cause of justice by bringing 

predictability to our process”). Procedural time bars, like the 14-day filing deadline in § 49-

2-505(3)(c), MCA, remain subject to constitutional review and equitable principles. See e.g. 

Rohlfs (reviewing the constitutionality of a 180-day notice requirement); Davis, ¶ 25 

(providing that the district court may consider a motion to toll a statutory filing deadline on 
8

equitable grounds); Lozeau v. GEICO Indem. Co., 2009 MT 136, 350 Mont. 320, 207 P.3d 

316 (applying the doctrine of equitable tolling to a three-year statute of limitations); Salway 

v. Arkava, 215 Mont. 135, 140, 695 P.2d 1302, 1305 (1985) (stating that “[c]ourts of general 

jurisdiction have from the beginning possessed the power to entertain equitable actions to set 

aside judgments”). 

¶19 Subsection 49-2-505(3)(c), MCA, provides that “the hearings officer shall issue a 

decision” after a hearing. Subsection 49-2-505(4), MCA, states that “[a] party may appeal a 

decision of the hearings officer by filing an appeal with the commission within 14 days after 

the issuance of the notice of decision of the administrative hearing.” Subsection 49-2-

505(3)(c), MCA, further provides that “[i]f the decision is not appealed to the commission 

within 14 days as provided in subsection (4), the decision becomes final and is not 

appealable to district court.” 

¶20 The 14-day filing deadline set out in § 49-2-505(3)(c), MCA, does not “withdraw,” 

“circumscribe,” “limit,” or “affect” the District Court’s subject matter jurisdiction. Miller, 

¶ 45; Davis, ¶ 23; Johnston, ¶ 21; Cobb, ¶ 34. This statutory filing deadline ultimately may 

bar BNSF from a full appeal on the merits, but it does not deprive the District Court of 

subject matter jurisdiction over BNSF’s petition for review in District Court. The District 

Court possesses jurisdiction to hear the parties’ dispute and adjudicate their issues. The 

District Court possesses jurisdiction to consider the parties’ arguments for the application of 

equitable doctrines and constitutional principles. See § 2-4-702, MCA.
9

¶21 The Dissent aggrandizes today’s decision with claims that the Court has 

“breathtakingly [...] legislated a ‘good cause’ exception to every procedural deadline the 

Legislature has ever enacted.” We agree that this decision resounds with separation of 

power considerations, but disagree that we have “violate[d] separation of powers,” struck 

“down the Legislature’s fundamental power,” or “violate[d] this Court’s constitutional duty.” 

 Stripped of its grandiose language, the Dissent contains no response to any of the caselaw 

on which the decision rests. Where the Dissent has relied on legal authority, the Dissent has 

relied on clearly distinguishable caselaw. 

¶22 The Dissent’s concern regarding the separation of powers further appears misplaced 

alongside the Dissent’s concession that the District Court incorrectly used “jurisdictional 

language” and erroneously concluded that it lacked jurisdiction to entertain BNSF’s appeal. 

Dissent, ¶¶ 36, 42. The Dissent falls into the linguistic trap identified by this Court’s recent 

opinions, see Opinion, ¶ 13, when it attempts to distinguish “this jurisdiction” with the 

court’s authority. Compare Dissent, ¶ 32 with ¶ 34. 

¶23 The Dissent relies on a reference guide’s interpretation of Nye v. Department of 

Livestock for the proposition that “only the legislature may validly provide for judicial 

review of agency decisions.” Nye v. Dept. of Livestock, 196 Mont. 222, 226, 639 P.2d 498, 

500 (1982). Nye involved a terminated employee’s filing of a petition for judicial review in 

district court. Id. at 223, 639 P.2d at 499. The employee argued that the district court had 

jurisdiction to hear the claim for wrongful termination based on broad language in an 

employment policy manual. Id. at 225, 639 P.2d at 500. The Court in Nye concluded that 
10

the policy manual constituted an administrative regulation that could not confer a right to 

appeal in district court. Id. at 226, 639 P.2d at 500. Read in context, the assertion that “only 

the legislature may validly provide for judicial review of agency decisions” clearly responds 

to the employee’s argument that the policy manual permitted her to sue directly in district 

court. Id., 639 P.2d at 500. The Dissent ignores this critical distinction. 

¶24 The Dissent also relies on Molnar and In re McGurran, 1999 MT 192, 295 Mont. 

357, 983 P.2d 968. Though disguised as a separation of powers concern, the Dissent 

advocates for the return to a distinction between “jurisdiction” and “authority jurisdictional 

in nature” that the Court made in Molnar, ¶ 9. See Dissent, ¶¶ 36, 38. This distinction, 

insofar as it is even possible to distinguish jurisdiction into separate meanings, has been 

identified as a source of confusion for our courts and federal courts. See Miller, ¶¶ 43-44; 

Davis, ¶¶ 19, 22-23. We refuse to promote this confusing distinction here, just as we have in 

Davis, Johnston, Miller, Cobb, and Clark. We abandoned the approach taken in Molnar and

In re McGurran when we decided Davis. Compare Davis, ¶ 23 with Davis, ¶ 29 (Rice, J.,

dissenting). 

¶25 We finally address the Dissent’s unfounded implication that our decision restricts a 

district court’s authority to enforce procedural statutes sua sponte. Dissent, ¶ 41. As we 

emphasized in Davis, ¶ 24, and recently confirmed in Spencer v. Beck, 2010 MT 256, ¶ 16, 

358 Mont. 295, __ P.3d __, a court can raise a procedural time bar sua sponte so long as the 

court takes due process precautions, including fair notice and providing an opportunity for 

the parties to present their positions. 
11

¶26 The Dissent also presents a laundry list of statutory “good cause” exceptions to 

statutory deadlines. Dissent, ¶ 38. The Dissent apparently believes that the existence of 

these statutory exceptions somehow supports its conclusion that courts cannot hear and 

determine whether a litigant has good cause to justify the missing of a procedural bar. Under 

the Dissent’s approach, a court would be required to deny BNSF’s petition for judicial relief 

even if BNSF had missed the deadline because a tornado that struck its counsel’s office had 

destroyed the entire case file. Under the Dissent’s approach, the district court would 

“properly exercise subject matter jurisdiction” simply by tallying the days that have passed 

and issuing a denial of judicial review without a hearing, regardless of whether good cause 

existed. Dissent, ¶¶ 32, 36. Article VII, Section 4(2) of the Montana Constitution does not 

so diminish and automate the court’s role. 

¶27 BNSF requests that this Court remand to the Commission to hear its motion for an 

extension of the 14-day filing deadline in the first instance. BNSF cites to M. R. Civ. P. 6(b) 

and Admin. R. M. 24.9.113 and Admin. R. M. 24.9.315 in support of its argument that the 

Commission had authority to extend the filing deadline. We disagree. Subsection 49-2-

505(4), MCA, permits BNSF to have appealed the hearing examiner’s decision to the 

Commission only within the 14-day filing deadline. Only the District Court had authority to 

grant BNSF equitable relief from the procedural bar of § 49-2-505(4), MCA, after the appeal 

deadline had expired. See §§ 2-4-702, -704, MCA. 

¶28 On remand, the District Court shall hear BNSF’s alleged good cause that would 

justify its motion for an extension of time. If the District Court finds good cause, it shall 
12

order the Commission (1) to grant BNSF’s motion for an extension of time, and (2) to hear 

and determine the merits of BNSF’s appeal. If the District Court concludes that BNSF’s 

motion lacks good cause, it shall deny the motion for an extension of time and resolve any 

other outstanding matters presented by BNSF’s petition. 

¶29 Reversed. 

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON

Justice Jim Rice, dissenting. 

¶30 In my view, the Court has misapplied jurisdictional principles, misinterpreted the 

Constitution, and failed to follow our holdings. Worse, the Court has acted beyond its own 

constitutional powers by legislating a “good cause” exception to virtually every procedural 

bar passed by the Legislature. In its zeal to diminish the effect of procedural bars, the Court 

has gone too far. I strongly dissent. 
13

¶31 The Court states repeatedly that legislatively enacted filing deadlines do not deprive 

the courts of subject matter jurisdiction. See Opinion, ¶¶ 13, 14, 17, 20. In fact, virtually the 

entire analysis of the Opinion is dedicated to this proposition. See Opinion, ¶¶ 13-20. While 

I generally agree with this proposition—that legislative acts may improperly impinge the 

jurisdiction of the courts—that did not happen here. The Court’s jurisdictional analysis is 

insufficiently nuanced and misses the real issue in this case—the express constitutional 

authority given to the Legislature. 

¶32 The District Court clearly had subject matter jurisdiction to entertain BNSF’s appeal 

from the agency decision and to address the issues raised therein. We have previously 

explained this concept. Molnar v. Mont. Pub. Serv. Commn., 2008 MT 49, ¶ 9, 341 Mont. 

420, 177 P.3d 1048 (“the District Court possessed general subject matter jurisdiction to 

review the agency decision . . . .”); see also In re McGurran, 1999 MT 192, 295 Mont. 357, 

983 P.2d 968. The District Court had jurisdiction to determine whether BNSF’s appeal was 

validly filed, whether the cross-petitions seeking enforcement of the agency decision were 

valid, and whether an award of attorney fees to the prevailing party in this discrimination 

proceeding was appropriate pursuant to § 49-2-505(8), MCA. Nothing the Legislature did 

deprived the court of this jurisdiction. While the District Court used incorrect language in 

denying relief to BNSF for “lack of jurisdiction,” a phrase which, unfortunately, courts are 

wont to employ, it nonetheless had jurisdiction to do exactly what it did, and reversal is not 

necessary.
14

¶33 However, the Court reverses on the ground that the Legislature’s enactment of a filing 

deadline and a limitation upon appeals made directly from a hearing officer to the courts 

impermissibly conflicts with a district court’s subject matter jurisdiction. For the following 

reasons, I believe there is no such conflict in this case.

¶34 First, the Constitution has granted the Legislature express authority over appeals to 

the district courts from agency determinations. Right within Article VII, Section 4, entitled 

“District court jurisdiction,” the Constitution provides that “[t]he legislature may provide for 

direct review by the district court of decisions of administrative agencies.” Mont. Const. art. 

VII, § 4(2). The Court quotes this provision in passing, see Opinion, ¶ 15, but fails to 

discuss it or acknowledge that it has any effect. Further, the Court fails to advise that we 

have previously interpreted it contrary to the Court’s holding today. Placed within the 

“District court jurisdiction” section of the Constitution, the provision expressly grants 

authority over agency appeals to the Legislature. As one commentary has explained this 

provision of the Constitution:

This section establishes the basic trial and appellate jurisdiction for 

district courts . . . .

. . .

As to appellate jurisdiction, the principal litigation concern has been 

review of administrative action. The Montana Supreme Court has emphasized 

the legislative role in providing for administrative review. Only the legislature 

may provide for judicial review of administrative actions (Nye v. Department 

of Livestock, 1982), and the legislature may deny or restrict the right of review 

from administrative decisions to a particular court.
15

Larry M. Elison & Fritz Snyder, The Montana State Constitution: A Reference Guide 144-45 

(Greenwood Press 2001) (emphasis added). The comment correctly cites our decision in Nye 

v. Department of Livestock, 196 Mont. 222, 639 P.2d 498 (1982), where we held: “In 

Montana, only the legislature may validly provide for judicial review of agency decisions. 

‘The legislature may provide for direct review by the district court of decisions of 

administrative agencies.’ Mont. Const. art. VII, § 4, cl. 2. A right of judicial review cannot 

be created by agency fiat.” Nye, 196 Mont. at 226, 639 P.2d at 500. We held similarly in 

Molnar, ¶ 7: “We have held that only the Legislature may validly provide for judicial review 

of agency decisions. Nye v. Dept. of Livestock, 196 Mont. [at] 226, 639 P.2d [at] 500). As 

such, a court’s authority to review administrative rulings is constrained by statute.” 

¶35 Pursuant to its constitutional authority, the Legislature enacted the appeal provisions 

at issue in this case, particularly, § 49-2-505, MCA. Subsection (4) provides that “[a] party 

may appeal a decision of the hearings officer by filing an appeal with the commission within 

14 days after the issuance of the notice of decision of the administrative hearing.” Section 

49-2-505(4), MCA. Then, critically, subsection (3)(c) provides:

If the decision is not appealed to the commission within 14 days as provided in 

subsection (4), the decision becomes final and is not appealable to district 

court.

Section 49-2-505(3)(c), MCA (emphasis added). It should first be noted that, by the plain 

words of this provision, the Legislature made no direct effort to limit the subject matter 

jurisdiction of the district court—in other words, to declare that district courts lacked 

jurisdiction to entertain appeals from state agencies. Rather, it exercised its constitutional 
16

authority to govern agency appeals by prohibiting parties from “leapfrogging” over the 

Human Rights Commission and seeking direct review by a district court if they have failed, 

first, to timely appeal to the Human Rights Commission. If a party fails to appeal from a 

hearing officer’s decision within 14 days, the Legislature has declared the hearing officer’s 

decision is to be “final” and nonappealable. 

¶36 Within this statute, the Legislature utilized the subject matter jurisdiction of the 

district court by authorizing appeals to the district court after the Commission has rendered a 

decision. Section 49-2-505(9), MCA. It further utilized that jurisdiction by permitting 

district courts to award attorney fees and costs to a prevailing party following an agency 

decision. Section 49-2-505(8), MCA. This case played out exactly as the statutes 

envisioned. Despite its incorrect use of jurisdictional language, the District Court had 

jurisdiction to entertain BNSF’s appeal and to determine whether, pursuant to the statutory 

provisions, BNSF had the right to proceed. Determining that BNSF’s appeal was in 

violation of statute, the District Court properly denied the appeal. Also pursuant to its

subject matter jurisdiction, it ordered the agency decision, declared “final” by statute, to be 

enforced and granted attorney fees to Cringle.

¶37 However, the Court, which apparently sees only the potential for inequity in the 

enforcement of procedural deadlines, has not only ignored the Constitution, but has 

overreacted: it has effectively abolished the Legislature’s power to enact a firm filing 

deadline. Based upon its overbroad reasoning that all filing deadlines necessarily conflict 

with a district court’s subject matter jurisdiction, the Court, in a breathtakingly broad 
17

response, has legislated a “good cause” exception to every procedural deadline the 

Legislature has ever enacted—in its words, to all “ ‘periods of limitation’ ” which “are 

scattered throughout the Montana Code Annotated and are ‘too numerous to mention.’ ” 

Opinion, ¶ 17. The Legislature has thus been stripped of its authority to enact a “rigid

statutory prescription.” Opinion, ¶ 16. Beyond the repudiation of the specific constitutional 

authority provided to the Legislature by Art. VII, Section 4(2), to govern appeals from 

agencies, this decision, more critically, violates separation of powers by encroaching upon 

and striking down the Legislature’s fundamental power and violates this Court’s 

constitutional duty. Obsessed with turning all deadlines into “ ‘claim-processing rule[s],’ ” 

Opinion, ¶ 16, the Court has lost sight of the fact that these are statutes—enacted pursuant to 

the Legislature’s separate constitutional authority. By euthanizing them, the Court has 

overstepped its bounds.

¶38 It is only the Legislature who is constitutionally empowered to enact “good cause” 

exceptions to statutory deadlines, and it uses that authority often. See e.g. § 16-4-301(1)(f), 

MCA (“the department may, for good cause, waive the 3-day requirement”); § 16-4-416(2), 

MCA (“[t]he department, upon a showing of good cause, may in its discretion extend the 

time”); § 32-3-216(3), MCA (“[f]or good cause shown within the 60-day period, the 

department may extend the response period for an additional 30 days”); § 32-3-303(3), MCA 

(“the department may extend the approval period for an additional 30 days for good cause”); 

§ 33-2-1111(1), MCA (“shall register within 15 days after becoming subject to registration,

unless the commissioner for good cause extends the time”); § 33-35-301(2)(b), MCA 
18

(“commissioner . . . upon a showing of good cause, may extend by 30 days the filing date for 

the report”); § 46-13-108(1), MCA (“[e]xcept for good cause shown, if the prosecution 

seeks treatment of the accused as a persistent felony offender, notice of that fact must be 

given at or before the omnibus hearing”); § 77-6-302(3), MCA (“[u]pon authorization, the 

movable improvements must be removed within 60 days . . . unless the department for good 

cause grants additional time for the removal”). (Emphases added to all foregoing statutory 

provisions.) Likewise, the Legislature has the authority to decline to create a “good cause” 

exception to a filing deadline. Here, the Legislature, pursuant to that authority, determined 

to prohibit an appeal made directly from a hearing officer’s decision to the district court 

when the appealing party failed to timely appeal to the Human Rights Commission, and 

provided no good cause exception. The District Court properly exercised subject matter 

jurisdiction in this case to ensure the statutes had been followed as they were enacted.

¶39 It is true, as the Court notes, that statutory time bars are subject to constitutional 

challenge and review. Opinion, ¶ 18. Application of a procedural bar may be found to 

violate a litigant’s due process rights. See Pickens v. Shelton-Thompson, 2000 MT 131, ¶ 21, 

300 Mont. 16, 3 P.3d 603. We have delineated the standards by which we will determine 

whether due process is satisfied.1 However, BNSF has not mounted a constitutional 

 

1 “[D]ue process requirements are flexible and may be adapted to meet the procedural protections 

demanded by a specific situation. McDermott [v. McDonald, 2001 MT 89,] ¶ 10 [305 Mont. 166, 24 

P.3d 200]. Accordingly, ‘the process due in any given case varies according to the factual 

circumstances of the case, the nature of the interests at stake, and the risk of making an erroneous 

decision.’ McDermott, ¶ 10 [internal citation omitted].” Geil v. Missoula Irrigation Dist., 2002 MT 

269, ¶ 58, 312 Mont. 320, 59 P.3d 398.
19

challenge to the 14-day statutory time bar enforced in this case, electing instead to rely on 

jurisdictional arguments, which I would reject.

¶40 Of course, it is cumbersome for courts to entertain constitutional challenges to 

statutory procedural bars on a case-by-case basis. Thus, the Court avoids such cumber and 

inconvenience by judicially legislating a good cause exception to every statutory time 

deadline. I will admit this is a much more convenient approach. However, what is 

convenient is not always constitutional, and here it is not. 

¶41 Then, further narrowing our existing precedent, the Court declares that procedural 

bars are merely “affirmative defenses that are subject to forfeiture and waiver.” Opinion, 

¶ 18. Yet, in Davis, a case on which the Court relies, the Court held that “nothing in our 

ruling precludes a court from raising, sua sponte, the timeliness of the petition” and 

enforcing the statutory time bar. Davis v. State, 2008 MT 226, ¶ 24, 344 Mont. 300, 187 

P.3d 654. Today, the Court steps away from that holding, essentially implying that a district 

court can no longer enforce procedural statutes by its own action.

¶42 The Legislature was within its express constitutional authority to enact the statutes at 

issue here. The Court has erred in its jurisdictional analysis but, worse, has acted beyond its 

constitutional authority and duty by legislating good cause exceptions to statutory deadlines 

which are the province of the Legislature. I dissent and would affirm the District Court. 

Although I would correct the incorrect language used by the District Court, I would 

nonetheless affirm for the reasons set forth herein.
20

¶43 In response, the Court asserts that this dissent has relied upon “clearly distinguishable 

caselaw.” Opinion, ¶ 21. However, this criticism merely seeks to distract from the reality 

that this dissent relies at root upon Article VII, Section 4 of the Montana Constitution, which 

gives express authority to the Legislature to govern the issue in this case. The Court cannot 

bring itself to acknowledge that the Constitution’s “District court jurisdiction” provision 

grants such authority to the Legislature. Although criticizing this dissent at length, the Court 

is at a loss to explain or apply this express constitutional provision. This is because the 

Constitution is clearly contrary to the Court’s “jurisdictional theory” and its holding in this 

case. The Court reasons that its theory of jurisdiction is superior because various scenarios 

such as tornado strikes will be conveniently resolved thereby. However, the potential for 

tornado strikes does not excuse us from following the dictates of the Constitution. And when 

courts refuse to honor, or even discuss, controlling constitutional provisions, so that they 

may instead adopt their own legal theories, the use of “grandiose language” in opposition is 

most appropriate.

¶44 I dissent. 

 /S/ JIM RICE