No. 79-32 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

A. C. RIERSON, 

Plaintiff and Appellant, 

THE STATE OF IIIONTANA, AND BOARD 

OF ADMINISTRATION OF PERS, 

Defendant and Respondent. 

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 and Olson, Great Falls, Montana 

Dennis Conner argued, Great Falls, Montana 

For Respondent: 

Hugh, Bennett, Kellner and Sullivan, Helena, Montana 

John F. Sullivan argued, Helena, Montana 

Submitted: February 26, 1980 

Urn%& 2, ;&- 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Appellant, A1 ~ierson, petitioned this Court for rehearing of his original appeal, in which we affirmed the District 

Court order dismissing his original and amended petition for 

judicial review of an administrative agency decision. Rehearing was granted, and the cause submitted on briefs. 

Rierson's case was commenced in District Court as an 

action for judicial review of a Board of Administration 

decision which denied Rierson's claim for additional retirement benefits. The petition for review was filed on 

January 11, 1978, but there was no subsequent service on the 

Board. An "amended complaint" was served on the Board over 

a year later on May 29, 1979. The Board filed a motion to 

dismiss Rierson's complaint on the grounds that it did not 

comply with the "prompt service" requirement of the Administrative Procedure Act. Section 2-4-702 (2) (a) , MCA. The 

District Court granted the motion to dismiss, and Rierson 

appealed to this Court. 

In an opinion dated April 1, 1980, we affirmed the 

District Court finding that the sixteen and one-half month 

delay in serving notice upon the Board was not reasonable 

under the facts of Rierson's case. Mr. Justice Sheehy argued in his dissent that the Board did not have subject 

matter jurisdiction over two of Rierson's three claims, and 

since the Board did not have the authority to decide constitutional issues or tort issues against itself, ~ierson's 

petition should be considered one for independent relief 

to which the "prompt service" requirement would not apply. 

Mr. Justice Daly joined in the dissenting opinion. On ~pril 

11, 1980, Rierson petitioned this Court for rehearing based 
on the position taken by Justices Sheehy and Daly in the 

dissent. 

In 1971 the responsibility for the administration of 

the highway patrol retirement system was transferred from 

the ~ighway Patrolmen's Retirement Board to the Board of 

Administration of the Public Employees' Retirement System. 

Until 1971 a retiring patrolman with more than twenty-five 

years of service could receive retirement benefits in excess of one-half regular pay. When the responsibilities 

for the patrolmen's retirement system were transferred, an 

attorney for the Board of Administration interpreted this 

practice to be in violation of sections 31-209 and 31-213, 

R.C.M. 1947. This interpretation was adopted as Board policy 

on April 21, 1972, and applied prospectively so that patrolmen retiring after April 21 could receive a maximum of onehalf pay even if they continued on the job after their 

twenty-fifth year of service. 

Rierson retired at the end of his twenty-five years 

of service on April 8, 1974. Nearly two years later on 

March 18, 1976, Rierson's attorney demanded an adjustment 

of Rierson's retirement benefits. In that demand letter 

Rierson's attorney noted that "a suit will be filed no later 

than April 9, 1976", and further that, "[tlime is of the essence in that the Statute of Limitations is about to run in 

this matter." The Board responded by suggesting that 

Rierson avail himself of administrative remedies since the 

Board had adopted contested case procedures. By a letter 

dated April 6, Rierson formally requested an administrative 

hearing before the Board. A hearing was granted and held 

on July 15, 1976. At the conclusion of that hearing, 

Rierson's attorney was directed to submit a brief in support 
of Rierson's position by August 9, 1976. No brief was 

forthcoming, and after several months had elapsed, the 

Board sent a letter to Rierson's attorney advising him that 

a decision would be made with or without a brief. Nearly 

eight months after the hearing, on March 11, 1977, Rierson's 

brief was submitted. 

In his brief Rierson claimed that he was entitled to 

additional benefits because of due process and equal protection violations and on the grounds of promissory estoppel. 

The hearings examiner responded to all three claims in the 

proposed findings of fact, conclusions of law and an order 

denying Rierson additional benefits on August 25, 1977. The 

proposed decision was adopted by the Board, and Rierson was 

notified of the decision on December 12, 1977. 

On January 11, 1978, Rierson's attorney filed a petition for judicial review in the District Court. Notice 

was not given to the Board of Rierson's petition. No further action was taken by Rierson for sixteen and one-half 

months. Then, on May 21, 1979, Rierson filed an "amended 

complaint" which was served on the Board on May 29, 1979. 

This was the Board's first notice of any judicial proceeding in the case. The Board moved to dismiss both the 

original and amended petitions. The District Court treated 

the petitions as requests for judicial review which would 

require "prompt service" of notice to the Board under the 

Administrative Procedure Act. 

Upon rehearing, Rierson contends that the ~istrict 

Court erred in failing to treat his petition for judicial 

review as an independent civil action to which the "prompt 

service" requirement would not apply. We find that if error 

was committed, it would not have affected the decision of 
the District Court. 

Although Rierson chose to have his case heard by the 

Board, he argues on appeal that the Board's decision is not 

binding, and, moreover, since his claims dealt with constitutional issues and a tort claim against the Board, his 

claims could not have been resolved by an administrative 

body. Although appellant's District Court action was filed 

under the Administrative Procedure Act, on rehearing he 

asserts that he should not be allowed to proceed with his 

claim under rules applicable to original District Court 

actions, unhindered by the requirements of administrative 

procedural restrictions. It is interesting to note that 

although the jurisdictional issue was first raised by 

Justice Sheehy in his dissent, Rierson argues that it has 

always been his intention to proceed in District Court with 

an action independent of the Board's unrewarding decision. 

We must conclude that even if the District Court claim 

is an independent civil action, original in that court, 

Rierson's own failure to pursue that action has left him 

without a remedy on appeal. Clearly, if the District Court 

action is an independent action, Rierson is bound by the 

statute of limitations which applies to such actions. In 

cases where damage to property rights is argued, any cause 

must be brought within two years. Section 27-2-207, MCA. 

In his reply Rierson asserts that the applicable limitation 

is that for written contracts (section 27-7-202(1), MCA) 

which is eight years, or obligations, other than a contract, 

and not founded on a written instrument (section 27-2-202(3), 

MCA) which is three years. Neither of these statutes of 

limitations is applicable in our view. Rierson's claims 

involved two constitutional violations and a request for 
invocation of the doctrine of promissory estoppel. Only 

in the broadest sense could these limitations be considered 

to be controlling, and since there is a more specific statute involving injury to personal property rights, of which 

retirement benefits are one, we are constrained to follow 

the more specific statute. Section 1-3-225, MCA. See also 

Butte Country Club v. Dept. of Revenue (1980) , Mont. 

, 607 P.2d 551, 37 St.Rep. 479. We also note that 

Rierson admitted the applicability of a two-year statute 

of limitations in his letter to the Board of March 18, 1976. 

Having concluded that the two-year statute of limitations is appropriate in this case, we further find that 

Rierson's District Court action is barred. Rierson has been 

aware of the effect of the two-year statute of limitations 

since he first demanded that his benefits be adjusted in 

1976. The entire history of this case is one of neglect 

and procrastination. He did not approach the Board for an 

adjustment until nearly two years after his retirement. 

Clearly his cause of action accrued no later than his retirement date, and from the record, there is no excuse for 

a delay of one year and 360 days which would obligate this 

Court to excuse Rierson's tardiness. When he was notified 

that the administrative process was over, he had five days 

remaining within the confines of section 27-2-207(1), MCA, 

to file his independent and original complaint in District 

Court. Instead, he filed a petition for judicial review on 

January 11, 1978, twenty-five days after his notification 

of the adverse agency ruling. Although that action was 

filed within the thirty-day limitation for petitions for 

judicial review of administrative actions, this Court will 

not allow the administrative appeal period to be added to 
the two-year statute of limitations, thus bootstrapping his 

original and independent action into compliance with the 

statute of limitations by use of an administrative action 

he now contends is void. 

Throughout the course of Rierson's suit against the 

Board, he has had the option of an independent District Court 

petition for relief. Although urged by the Board to seek 

administrative remedies, he was not required to do so. 

This Court must respect the requirement that remedies be 

sought with some degree of diligence. Rierson knew of the 

new interpretation of the retirement laws as early as June 

20, 1972. In the two-year period between that date and 

his retirement in April of 1974, he made no effort to seek 

any kind of remedy. His claims lay dormant for almost another two years until April 5, 1976, before he requested 

an administrative hearing. During that hearing, Rierson 

delayed the proceedings for another eight months before submitting his brief. This Court will not condone manipulation 

of the law so that a case may be further pursued. To do so 

would be an affront to the letter and the spirit of the 

statutes of limitations. Viewed in the best possible light, 

Rierson's suit against the Board still shows substantial 

evidence of inexcusable neglect. We find that the action 

in District Court is barred by the two-year statute of 

limitations of section 27-2-207(1), MCA. 

We reaffirm the District Court dismissal. 
We concur: 

"sng $4ia%&@, 

Chlef Justice 

Justices 

Mr. Justice Daniel J. Shea concurring: 

I concur with the decision here affirming the trial 

court's dismissal order. This is a case where the appellant, 

from beginning to end, slept on his rights. 
Mr. Justice John C. Sheehy and Mr. Justice Gene B. Daly 

dissenting: 

We iterate without dilution what we said in our dissent 

to the original opinion in this cause (Dissent, Cause No. 

79-32, 37 St.Rep. 627). In its opinion on the petition for 

rehearing foregoing, the majority has circled the issues raised 

by our dissent and the petition for rehearing, in so circling, 

the majority has stirred up as much dust as it did in the original 

opinion, to the extent that the issues in this case are further 

obscured. 

Originally, this was a relatively simple case: Rierson, 

a retired highway patrolman, had petitioned the District Court 

for review of an adverse decision against him by an administrative agency. He had filed his petition for review within 30 

days, but instead of serving a copy of that petition upon the 

administrative agency, he waited 16 months when he amended his 

petition and served a summons issued upon that petition. The 

only real issue in this case is whether the provision of 

section 2-4-702(2) (a), MCA, that a copy of the petition for 

review "shall be promptly served upon the agency", serves to 

prevent the District Court from considering agency excesses of 

statutory authority in deciding questions of constitutional law 

and a tort claim against itself. We had suggested some proper 

answers in our original dissent; unfortunately our powers of 

discussion seemed insufficient. 

It had been a happier circumstance for us if the majority 

had simply decided that sixteen months to make service failed 

to constitute "prompt" service, that prompt service was 

jurisdictional, and that therefore, Rierson was out of court. 

Instead, the majority careened off on a side trip over the 

statute of limitations, and we may be some time getting this 

Court back on the road again on this subject. 

-9- 
The majority buys itself a peck of trouble when it 

declares in dictum (we hope it will be considered dictum) that 

the statute of limitations continues to run on separable causes 

intermingled with the limited cause adjudicable by the administrative agency. That dictum is wrong because limitations should 

be tolled when the claimant is not neglecting to proceed in 

some forum on a phase of his claim, and when the other party has 

full notice while the claimant so proceeds of his additional 

but intermingled claims. Otherwise, as in this case, an administrative agency can act in excess of its authority, a ground 

provided in section 2-4-704, MCA, for which an administrative 

decision can be set aside, and never be called to account in a 

court of law because the statute of limitations may have run on 

the cause which the agency incorrectly assumed jurisdiction to 

decide. 

The majority opinion does not deal with our contentions 

respecting the judicial review statute for administrative cases, 

section 2-4-702, MCA, and particularly, it has not looked at that 

statute with respect to the statute of limitations on "independent" 

or intermingled causes. Again, the first paragraph of that 

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 provmed Q statute." Section 22-702(1) 

(a), MCA. (Emphasis added.) 

That quoted statute contemplates, in our view, full 

judicial review not only of causes with which the administrative 

agency has authority to act upon, but also cases where it 

violates its constitutional or statutory provisions. Indeed, 

that is provided, as we have noted, in section 2-4-704(2)(a), MCA. 

-10- 
Our second objection to the majority opinion on rehearing 

in deciding this case on the statute of limitations is that 

apparently the court had decided incorrectly which statute 

applies. This case does not concern an "injury to personal 

property." This was not Rierson's automobile that was damaged; 

this was, at the least, a liability created by statute governed 

by section 27-2-211(1) (c), MCA (two-year limitation). We would 

hold that the pension dispute grows out of the relationship 

of master and servant which is contractual in nature (53 Am.Jur. 

2d 92 Master - and Servant B 14), and that either the five-year 

or eight-year period applies under section 27-2-202, MCA. 

Rierson's tort action however has a two-year limitation, 

section 27-2-207, MCA, which again points up the necessity for 

tolling the statute while he is pursuing his administrative 

remedy. Certainly the agency should not be allowed to determine 

a tort action brought against itself. 

We would reverse and remand to the District Court for 

further proceedings. Whether he would be successful there, 

we do not know, but at least the courts of justice would be 

open to him, 1972 Mont. Const., Art. 11, 5 16, and he would not 

be deprived of due process. 

/," Justices 1