No. 79-32 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

Plaintiff and Appellant, 

VS. 

THE STATE OF MONTANA, AND 

BOARD OF ADMINISTRATION OF 

PUBLIC EMPLOYEES RETIREMENT 

DIVISION I 

Defendants and Respondents. 

Appeal from: District Court of the First Judicial District, 

In and For the County of Lewis and Clark, 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Conner, Baiz & Olson, Great Falls, Montana 

Dennis Conner argued, Great Falls, Montana 

For Respondents: 

Hughes, Bennett & Cain, Helena, Montana 

John Sullivan argued, Helena, Montana 

Filed: 

Submitted: Februa.ry 26, 1980 

Decide? AP'R.& "- - - --- 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

A. C. Rierson appeals from an opinion and order dismissing his original and amended petitions for judicia? 

review of an administrative agency's decision. The opinion 

and order was entered by the District Court, First Judicial 

District, Lewis and Clark County, upon motions to dismiss 

by the State and the Board of Administration of the Public 

Employees' Retirement Division. 

Rierson served for over twenty-five years with the 

Montana Highway Patrol. When Rierson began his career, the 

patrolmen's retirement system was administered by the Montana 

Highway Patrolmen's Retirement Board. It had interpreted 

the law to provide for an actuarial equivalent which would 

increase a patrolman's pension for additional service after 

retirement age without drawing on the pension. 

In 1971, the function of administering the Highway 

Patrolmen's Retirement Act was transferred to the Board of 

Administration. It interpreted the law differently. Under 

the new interpretation, no patrolman's retirement allowance 

should ever exceed one-half of his final salary, regardless 

of his years of service. This new interpretation of the 

retirement statute was applied prospectively. 

On September 24, 1973, Rierson wrote to the Board of 

Administration. Rierson wanted to know how his retirement 

benefits would be affected if he worked more than twentyfive years with the Highway Patrol. Rierson was told his 

retirement benefits would not continue to accumulate after 

his twenty-fifth year with the Highway Patrol. 

On January 30, 1974, Rierson officially requested his 

regular retirement allowance. Rierson planned to continue 
as a patrolman, but he made the request because his retirement benefits were fixed and he was no longer working under 

the retirement program. Initially, Rierson was advised no 

provision permitted a patrolman to receive retirement benefits while continuing to serve as a patrolman. Later, 

Rierson was told he would be denied additional retirement 

benefits for his services after twenty-five years. 

Rierson resigned from the Highway Patrol on March 8, 

1974. Two years later, on April 6, 1976, he requested an 

administrative hearing on his claim for additional retirement benefits for service after twenty-five years as a 

patrolman and credit for service in the military. 

The administrative hearing was held on July 15, 1976. 

The Board of Administration denied Rierson's requested 

relief on September 16, 1977, and Rierson was notified of 

the decision on December 12, 1977. 

On January 11, 1978, Rierson filed a petition for judicial review in Lewis and Clark County. A summons was issued 

but never served. On May 21, 1979, Rierson filed an amended 

petition. He returned the original summons and requested 

an amended summons. Both the amended petition and summons 

were served on the Board of Administration on May 29, 1979. 

On June 18, 1979, the State and the Board of Administration filed motions to dismiss the petition for insufficiency 

of service of process and failure to state a claim. A hearing on the motion was held on July 3, 1979, and an opinion 

and order dismissing both the original and amended petitions 

with prejudice was issued on August 29, 1979. Three grounds 

were given. First, there was no prompt service of the 

original petition under section 2-4-702(2)(a), MCA. Consequently, the original petition must be dismissed for lack 
of ~istrict Court jurisdiction. Second, absent such service, 

the amended petition could not relate back to the original 

petition under Rule 15 (c) , M. R.Civ. P. Third, both petitions 

must be dismissed with prejudice under Rule 41(b), M.R.Civ.P., 

for lack of prosecution. 

The judgment of dismissal was entered on September 25, 

1979. Rierson's notice of appeal was filed on September 

28, 1979. 

Two issues are raised upon this appeal. The first 

is whether section 2-4-702(2)(a), MCA, is unconstitutional. 

The second is whether the District Court erred in granting 

the motions to dismiss Rierson's petition for judicial review. We uphold the constitutionality of the statute, and 

we can find no error by the District Court. 

Rierson first contends section 2-4-702(2)(a), MCA, is 

unconstitutionally vague. Next. Rierson implies the statute 

violates his equal protection rights. Both contentions are 

without merit. 

Section 2-4-702 (2) (a), MCA, is not unconstitutionally 

vague. A statute violates due process for vagueness when 

the language used does not sufficiently define the required 

conduct and men of common intelligence must necessarily 

guess at its meaning. United States v. Powell (1975), 423 

U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228. Such is not the 

case with the term "promptly." "Promptly" is a common word 

with a plain and well known meaning. That meaning is ready 

and quick to act, depending on the circumstances. 1rvin .. 

v. Koehler (2nd Cir. 1916), 230 F. 795; Taft v. Wolma (~ex.-- 

1976), 541 S.W.2d 673. A statute is not unconstitutionally . I 

vague merely because clearer and more precise language 

might have been used. See United States v. petri110 (19471, 
332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877, 1882. 

Moreover, Rierson conceded "promptly" may be governed by 

standards of reasonableness. Such standards are consonant 

with due process when they can be judged by a common standard 

of conduct. See F & A Ice Cream Co. v. Arden Farms Co. 

(S.D. Cal. 1951), 98 F.Supp. 180. 

Section 2-4-702(2) (a), MCA, also does not violate 

Rierson's equal protection rights. Rierson asserts the 

statute unconstitutionally discriminates in favor of the 

government by requiring a stricter standard of service of 

process simply because Rierson's claim involves redress 

against a governmental body. However, this requirement applies with equal force to governmental agencies who seek 

review of adverse administrative decisions. 

We also hold the District Court properly dismissed 

Rierson's petition for judicial review for failure of service and lack of prosecution. 

The Montana Administrative Procedure Act governs the 

procedural aspects of this cause. Under that act, a petition 

for judicial review must be filed within 30 days after service of the final agency decision, and once filed, the petition must be promptly served upon all parties of record. 

Section 2-4-702 (2) (a), MCA. 

Rierson asserts the State and the Board of Administration were timely served under this statute. Rierson first 

points out that service under the Administrative Procedure 

~ct is governed by the Montana Rules of Civil Procedure 

unless a statute expressly provides otherwise. Section 2-4- 

106, MCA. From this Rierson contends "promptly" is an indefinite term, and as a consequence, service is governed by the 

three-year time limit of Rule 41(e), M.R.Civ.P. ~lternatively, 
Rierson asserts service sixteen and one-half months after 

filing is prompt. Both contentions are without merit. 

When construing a statute words should be given their 

plain and ordinary meaning. Jones v. Judge (1978), 

Mont. 577 P.2d 846, 848, 35 St.Rep. 460, 462. As 

already noted, the plain meaning of "promptly" is ready and 

quick to act, depending largely on the facts of each cause. 

Irvin v. Koehler, supra; Taft v. Wolma, supra. 

Here, a sixteen and one-half month delay is not reasonable under the facts of this cause. Rierson never served 

his original petition, and no explanation has been given for 

this failure. Certainly, service on the State or the Board 

of Administration could easily have been obtained. Similarly, 

no acceptable explanation has been given for the delay in 

filing and serving the amended petition. Rierson's attorney 

felt he had three years in which to perfect service of a 

petition for judicial review. An attorney's mistake is 

unfortunate, particularly here where Rierson's claim was 

dismissed with prejudice. However, there are two sides to 

all litigation, and the State and the Board of Administration 

are entitled to insist on the finality of litigation. Armstrong v. High Crest Oil, Inc. (1974), 164 Mont. 187, 520 P.2d 

1081; and State ex rel. Equity Supply Co. v. ~ist. Court 

(1972), 159 Mont. 34, 494 P.2d 911. 

Rierson next contends his amended petition should have 

related back under Rule 15(c), M.R.Civ.P., to the time of 

his original petition which was timely filed but never served. 

This contention is also without merit. 

The amended petition cannot relate back under Rule 15(c), 

M.R.Civ.P., to the date the original petition was filed. he 

concept of notice is critical to operation of the relation 
back rule. In Rozan v. Rosen (1967), 150 Mont. 121, 125, 

431 P.2d 870, 872, the relation back rule was described as 

follows: 

". . . Rule 15(c) is based on the concept 

that a party who is notified of litigation 

concerning a given transaction or occurrence 

has been given all the notice that statutes 

of limitation are intended to afford. Thus, 

if the original pleading gives fair notice 

of the general fact situation out of which 

the claim or defense arises, an amendment 

which merely makes more specific what has 

already been alleged . . . will relate back 

even though the statute of limitations has 

run in the interim . . ." (Quoting 3 Moore's 

Federal Practice, 1115.15(3) at 15-194 to 

15-196. ) 

Here, the amended petition was filed more than 30 days after 

Rierson had been served with the final agency decision, and 

the State and the Board of Administration were never served 

with the original petition. It follows that the State and 

the Board of Administration were not given fair notice by 

the original petition, and the amended petition should be 

dismissed since the relation back doctrine will not operate. 

It is not ordinarily the function of appellate tribunals to review administrative procedures or to establish 

exact time limits where none has been provided by the legislature. Isobe v. California Unemployment Insurance App. Bd. 

(Calif. 1974), 526 P.2d 528, 532. However, for the sake of 

guidance in the future, we note that service of a petition 

for judicial review within thirty days, or thereabouts, 

from the time the petition was filed in the District Court 

should not result in a dismissal for failure to comply with 

section 2-4-702 (2) (a) , MCA. 

The opinion and order of the District Court is affirmed. 

Rierson's contentions lack substance and Rierson has not 

carried his burden on appeal. 
We concur: 

?A da%4 

Chief Justice 
Mr. Justice John C. Sheehy dissenting: 

Somewhere in the dim past of my legal education and of 

what I thought was a broad legal experience, I missed something. 

While my attention was elsewhere, an administrative body 

became possessed of the full judicial power of the State to 

decide constitutional issues and to determine, even against 

itself, whether a promissory estoppel cause existed. While 

I was napping, this remarkable event of legal progress, 

unique among the several estates or in the federal system, 

bridged the abyss that used to exist between the powers of 

the judicial- and the powers of the executive branches. 

Unless we concede that the Public Employeesf Retirement 

Board is vested with broad judicial power contra to our 

state constitution, Alfred C. Rierson is deprived by the 

majority opinion of his constitutional right to have his 

cause of action for promissory estoppel tried in a judicial 

forum, and we have surrendered for ourselves and the District 

Courts, our constitutional duty to decide finally such items 

as due process and equal protection of the law. 

From the beginning, Alfred C. Riersonfs claims before 

the Public Employees' Retirement Board were three-fold: (1) 

he was entitled to purchase credit toward his retirement, 

pension for military service, and credit for time worked 

over 25 years; (2) PERS had tortiously misled him into 

working beyond 25 years by promising him that such additional 

work years would be credited to his retirement; and, (3) if 

PERS decided otherwise, he was deprived of due process and 

equal protection of the laws. 

I would concede that PERS has the administrative power to 

interpret the retirement system laws -- as they exist and its rules 

thereunder as to the eligibility and extent of retirement benefits 

due Alfred C. Rierson. However, that power is subject to judicial 
review. I do not concede, although the majority has decided 

otherwise, that PERS has the judicial power to decide a tort 

action against itself, or that it can make decisions of 

constitutional quality, which bind the District Courts or 

us. In other words, while PERS has administrative power to 

render a reviewable decision on Rierson's first claim, it 

has no judicial power to decide his second and third claims. 

The Board exercised judicial power beyond doubt. In 

its conclusion of law no. 3, it determined that Rierson was 

not "denied due process of law"; in conclusion of law no. 4, 

it found that "petitioner was not denied equal protection of 

the laws." In conclusion of law no. 5, it stated that the 

"petitioner cannot by way of promissory or equitable estoppel 

bar the application" of a statute to his retirement benefits. 

Those conclusions go far beyond the interpretative power of 

the Public Employees' Retirement Board. The only power that I 

can find vested in the Board, beyond the authority to make rules, 

is the following: 

"The board shall determine who are employees within 

the meaning of this chapter. The board shall be the 

sole authority under this chapter as to the conditions 

under which persons may become members of and receive 

benefits under the retirement system. The Board shall 

determine and may modify allowances for service and 

disability under this chapter. All persons in similar 

circumstances shall be treated alike." Section 19- 

3-304 (2), MCA. 

That grant of responsibility by the legislature does 

not constitute an investment of judicial power. In fact the 

legislature could not invest the Board with judicial functions, 

because under the 1972 Montana Constitution, Art. VII, §I, 

the judicial power of the state is vested in the courts. 

When Alfred C. Rierson lost before the Public Employees' 

Retirement Board, he filed his petition for review in the District 

Court. His petition, and his amended petition, continued his claims 
for benefits, as a reviewable matter, but also included his 

due process and equal protection contentions, and his promissory 

estoppel claim against PERS. His petition should be regarded by 

us not only as one for review of the administrative action, but 

as an independent, separable complaint on the tort and 

constitutional issues. His petition in the District Court 

on these contentions is filed for the first time in a forum 

with the judicial power to decide them. We should therefore 

not kick him out of court on a procedural point relating to 

administrative review when the same procedure would be 

acceptable had his petition been confined to the judicial 

issues. What I am saying is Rierson could have ignored the 

adverse findings of PERS and filed instead a petition for 

certiorari to review the constitutionality of the laws as 

applied to him, and to prosecute his promissory estoppel 

action. This would not be a collateral attack, as we shall 

show. He chose instead to combine his administrative review 

petition with his other contentions, which has the advantage 

of showing that he had exhausted his administrative remedies. 

Determination of constitutional issues is reserved to 

the courts. It is said in 1 Arn.Jur.2d 989, 390, Administrative 

- Law, S185: 

"While in some special instances the determination 

of the validity of a legislative act may be within the 

competence of an administrative agency it is 

universally recognized that administrative agencies, 

as such, do not determine constitutional issues and 

specifically do not determine the constitutionality 

of statutes or ordinances under which they act the 

validity of which is and must be assumed by them 

until a judicial declaration to the contrary." 

Take note, therefore, that the majority opinion deprives 

Alfred C. Rierson of any judicial action or review with 

respect to his constitutional issues or his tort claim and 

leaves him only with the decision of a Board that had no 

choice but to uphold the constitutionality of its actions. 

The procedural point upon which the majority decision turns 

is that Rierson, although he filed his petition for review of the 
administrative action in time, did not serve a copy of the 

petition "promptly" as required by section 2-4-702(2), (a-l'r 

MCA. Leaving aside the legislative imprecision inherent in 

the term "promptly" it has no application in this case in 

any event because Rierson's petition in the District Court 

is presented for the first time in a forum with the judicial 

power to decide his issues of constitutionality and promissory 

estoppel. What the majority opinion overlooks, as indeed 

did the parties, is that section 2-4-702, MCA, the procedural 

statute relied on by the majority, is not intended to limit 

the scope of judicial review in precisely this kind of case. 

That same section provides: 

"A person who has exhausted all administrative 

remedies available within the agency and who 

is aggrieved by a final decision in a contested 

case is entitled to judicial review under this 

chapter. This section does -- not limit utilization 

--- of or the scope of judicial review available under 

other means -- of review, redress, relief, or trial 

-- de novo provided by statute." Section 2-4-702(1) (a), 

MCA. (Emphasis added.) 

Not only does our statute permit other types of judicial review 

such as should have been given to Rierson here, but other jurisidictions have indicated that the procedural rules for 

judicial review do not apply when decisions beyond the 

competence of the administrative body are up for review. 

In Hadden v. Aitken (Neb. 1952), 55 N.W.2d 620, 35 A.L.R.2d 

1003 (decided on other grounds) a motion to dismiss was filed because 

the appeal from an administrative agency had not been filed in 

time. The Nebraska court determined that it had before it 

an original action in equity to enjoin the enforcement of an 

administrative order on the grounds of unconstitutionality. 

In that situation, the Nebraska court refused to dismiss the 

appeal on the ground that the appeal had not been filed in 

time. 

883867 

In Foy v. Schechter (N.Y.C.A. 1956) , 136 N.E. 2d HI+, 84-5, the ! 

New York Court of Appeals allowed a collateral attack on an 

administrative action where the contention was made that the attack 

was on the ground of lack of power in the administrative agency to 
make the decision and quoted 73 C.J.S. Public Administrative 

Bodies and Procedure, 8146, as follows: 

"Notwithstanding the rule against collateral attack, 

a decision [of an administrative body] may be subject 

to such attack where it is absolutely void; and, since 

the jurisdiction of an administrative board or agency 

consists of the powers granted it by statute, a 

determin~tson is void and subject to collateral attack 

where idmade either without statutory power or in 

excess thereof. Accordingly, administrative decisions 

may be collaterally attacked as void for want of 

jurisdiction; and where a board's order is without 

the board's authority, and is based not on a determination of fact, but on an erroneous conclusion 

of law, it is clearly void and subject to collateral 

attack. " 

The procedural statute upon which the majority relies, section 

2-4-702(2)(a), MCA, is an example of poor legislative draftsmanship insofar as the review procedure in District Courts is 

concerned. After providing that the petition for review 

shall be filed in the District Court within 30 days after 

service of the final decision of the agency, it goes on to 

provide that a --- copy of the petition shall be "promptly 

served" upon the agency. Nothing in the statute indicates 

anything about service of process out of the District Court. 

In the normal procedure, which we assume should apply here, 

upon the filing of the petition for review, either a summons 

or a writ of review issued by the court and served upon the 

agency would be the method to bring the agency within the 

jurisdiction of the District Court. Nothing in the procedural 

section provides for service of process upon the agency. 

Presumably therefore, the ordinary statutes and rules pertaining 

to process should be followed on petitions for review from 

administrative agencies. In my opinion, the provision that 

a copy of the petition (which is not a process) be "promptly 

served" upon the agency is merely directory and has nothing 

to do with the acquiring of jurisdiction by the District 

Court over the agency. That is acquired when process issued 

by the court, either a summons, or a writ, is served upon 
the agency. The ordinary rules of service apply to a 

summons or a writ. I would reverse and remand with directions 

to the District Court to deny the motion to dismiss filed by 

the agency, and to proceed to a valid determination of all 

the issues raised by the amended petition. 

I join in the dissenting opinion of Mr. Justice John C. Sheehy. 

Justice /