No. 79-32 INTHE SUPREME COURT OF THE STATE OF MONTANA

Plaintiff and Appellant,

VS. THE STATE OF MONTANA, AND BOARD OF ADMINISTRATION OF PUBLIC EMPLOYEES RETIREMENT DIVISIONI Defendants and Respondents.

Appeal from: DistrictCourt 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 

# AP'R.&"- Decide?

## - ----Mr. JusticeJohn Conway Harrison delivered theOpinion of theCourt. A. C. Rierson appeals from an opinion and order dismissing his originaland amended petitions forjudicia? review of an administrativeagency's decision. The opinion and order was entered by the District Court, FirstJudicial District, Lewis and Clark County, upon motions todismiss by the Stateand theBoard of Administration of the Public Employees' Retirement Division. Rierson served for over twenty-five years with the Montana Highway Patrol. When Rierson began hiscareer, the patrolmen's retirement system was administered by theMontana Highway Patrolmen's Retirement Board. Ithad interpreted the lawtoprovide for an actuarial equivalentwhich would increase a patrolman's pension for additional serviceafter retirement agewithout drawing on the pension. In 1971, the functionof administering the Highway Patrolmen's Retirement Actwas transferred to the Board of Administration. It interpreted the lawdifferently. Under thenew interpretation, no patrolman's retirement allowance should ever exceed one-half of his final salary, regardless of hisyears of service. This new interpretation of the retirement statutewas applied prospectively. On September 24, 1973, Rierson wrote to the Board of Administration. Rierson wanted toknow how hisretirement benefitswould be affected if he worked more than twentyfiveyears with theHighway Patrol. Rierson was told his retirementbenefitswould notcontinue to accumulate after his twenty-fifth year with theHighway Patrol. On January 30, 1974, Rierson officiallyrequested his regular retirement allowance. Rierson planned to continueas a patrolman, but he made the request because hisretirement benefitswere fixed and he was no longer working under theretirement program. Initially, Rierson was advised no provision permitted a patrolman toreceive retirementbenefitswhile continuing to serve asa 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 administrativehearing on his claim for additional retirement benefits for serviceafter twenty-five years asa patrolman and creditfor service inthemilitary. The administrativehearing 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 forjudicialreview inLewis and Clark County. A summons was issued but never served. On May 21, 1979, Rierson filed an amended petition. Hereturned 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 Stateand the Board of Administration filedmotions todismiss thepetition for insufficiency of service of process and failure to statea claim. A hearing on themotion 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, therewas no prompt serviceof the original petition under section 2-4-702(2)(a), MCA. Consequently, the original petition must be dismissed for lackof ~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 areraised upon this appeal. The first iswhether section 2-4-702(2)(a), MCA, isunconstitutional. The second iswhether the DistrictCourt erred ingranting themotions todismiss Rierson's petition forjudicial review. We uphold the constitutionality of the statute, and

we can find no errorby the District Court. Rierson firstcontends section 2-4-702(2)(a), MCA, is unconstitutionally vague. Next. Rierson implies the statute violates hisequal protection rights. Both contentions are without merit. Section 2-4-702 (2)(a),MCA, isnot unconstitutionally vague. A statuteviolates due process for vagueness when the language used does not sufficientlydefine the required conduct and men of common intelligencemust necessarily guess atitsmeaning. United Statesv. Powell (1975), 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228. Such isnot the case with theterm "promptly." "Promptly" is a common word with a plain and wellknown meaning. That meaning isready and quick to act, depending on the circumstances. 1rvin



### .. v. Koehler (2nd Cir. 1916), 230 F. 795; Taftv. 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 Statesv. petri110 (19471,332U.S. 1, 7, 67 S.Ct. 1538, 1541, 91L.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 notviolate 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 requirementapplies with equal force to governmental agencies who seek review of adverse administrative decisions. We also hold the District Courtproperly 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 reviewmust be filed within 30 days after service of the final agency decision, and once filed, the petitionmust 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 isprompt. Both contentions arewithout merit. When construing a statutewords 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" isready and quick toact, depending largely on the facts of each cause. Irvinv. Koehler, supra; Taftv. Wolma, supra. Here, a sixteen and one-half month delay is not reasonable under the factsof this cause. Rierson never served his original petition, and no explanation has been given for this failure. Certainly, serviceon the Stateor the Board of Administration could easilyhave been obtained. Similarly,

no acceptable explanation has been given for the delay in filingand serving the amended petition. Rierson's attorney felthe had three years inwhich toperfect service of a petition for judicial review. An attorney's mistake is unfortunate, particularlyhere where Rierson's claimwas dismissed with prejudice. However, there are two sides to alllitigation, and the State and the Board of Administration are entitled to insist on the finalityof litigation. Armstrong v. High CrestOil, 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 timeof his original petition which was timely filedbut never served. This contention is alsowithout 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 iscritical to operation of the relationback rule. In Rozan v. Rosen (1967), 150 Mont. 121, 125, 431 P.2d 870, 872, the relation back rulewas described as follows: 

# ".

. . Rule 15(c)isbased on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given allthe notice that statutes of limitation are intended to afford. Thus, if the original pleading gives fairnotice of the general fact situation out of which the claim or defense arises, an amendment which merely makes more specificwhat has already been alleged

# . .

# . willrelateback even though the statuteof limitations has run inthe interim 

# . . ." (Quoting3 Moore's Federal Practice, 1115.15(3) at15-194 to 15-196. ) Here, the amended petition was filedmore 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 originalpetition. It follows that the State and the Board of Administration were not given fairnotice by the originalpetition, and the amended petition should be dismissed since the relation back doctrinewillnot operate. It is not ordinarily the function of appellate tribunals toreview administrativeprocedures or toestablish exact time limitswhere 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 inthe future, we note that service of a petition forjudicial review within thirtydays, or thereabouts, from the timethe petition was filed inthe District Court should not result ina dismissal for failure to comply with section 2-4-702 (2)(a)

### , MCA. The opinion and order of the DistrictCourt is affirmed. Rierson's contentions lack substance and Rierson has not carried hisburden on appeal.We concur: 

# ?A 

# da%4 Chief JusticeMr. Justice John C. Sheehy dissenting:

Somewhere in the dim past of my legal education and of what I thoughtwas a broad legal experience, Imissed something. While my attentionwas 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 Iwas 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 EmployeesfRetirement Board isvested 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. Riersonfsclaims before the Public Employees' Retirement Board were three-fold: (1) he was entitled to purchase credit toward his retirement, pension formilitary service,and credit for time worked

over 25years; (2)PERS had tortiously misled him into working beyond 25 years by promising him that such additional work yearswould be credited to his retirement; and, (3) if PERS decided otherwise, he was deprived of due process and equal protection of the laws. Iwould 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 retirementbenefits dueAlfred C. Rierson. However, that power is subject to judicialreview. I do not concede, although the majority has decided otherwise, that PERShas the judicial power to decide a tort action against itself, or that it canmake 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 "petitionerwas not denied equal protection of the laws." In conclusion of law no. 5, it stated that the "petitioner cannotby way of promissory or equitable estoppel bar the application" of a statute to his retirementbenefits. 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: "Theboard shall determinewho 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 responsibilityby the legislature does not constitute an investmentof judicial power. In fact the legislature could not invest the Board with judicial functions, because under the 1972Montana Constitution,Art. VII, §I, the judicialpower of the state is vested in the courts. When Alfred C. Rierson lostbefore the Public Employees' RetirementBoard, he filed his petition for review in the District Court. His petition, and his amended petition, continued his claimsforbenefits, 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 DistrictCourt

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. Thiswould 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 actmay 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 ordinancesunder 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 reviewwith respect to his constitutional issues or his tort claim and leaves him only with the decision of a Board that had no choicebut to uphold the constitutionality of its actions. The procedural point upon which themajority decision turns is that Rierson, although he filed his petition for review of theadministrativeaction 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"ithas no application in this case in any event because Rierson's petition in the District Court is presented for the first time in a forumwith the judicial power to decide his issues of constitutionalityand 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: "Aperson 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. (Emphasisadded.) Not only does our statutepermit 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 reviewdo not apply when decisions beyond the competence of the administrativebody are up for review. In Hadden v. Aitken (Neb. 1952), 55 N.W.2d 620, 35 A.L.R.2d 1003 (decidedon other grounds) a motion to dismisswas filed because the appeal from an administrativeagency had not been filed in time. The Nebraska court determined that ithad 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 administrativeaction where the contentionwas made that the attack

was on the ground of lack of power in the administrative agency tomake the decision and quoted 73 C.J.S. Public Administrative Bodies and Procedure, 8146, as follows: "Notwithstandingthe rule against collateral attack, 

### a decision [of an administrativebody] may be subject to such attack where it is absolutely void; and, since the jurisdiction of an administrativeboard or agency consists of the powers granted it by statute, a determin~tsonisvoid and subject to collateral attack where idmade either without statutory power or in excess thereof. Accordingly, administrative decisions may be collaterally attacked as void forwant 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 reviewprocedure in District Courts is concerned. After providing that the petition for review shall be filed in the DistrictCourtwithin 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 themethod to bring the agencywithin 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. Inmy opinion, the provision that a copy of the petition (which is not a process) be "promptly served"upon the agency ismerely directory and has nothing to do with the acquiring of jurisdictionby the District Court over the agency. That is acquired when process issued by the court, either a summons,or a writ, is served uponthe agency. The ordinary rules of service apply to a

summons or a writ. Iwould 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 /