No. 89-199 

IN THE STJPREME COURT OF THE STATE OF MONTANA 

1989 

DUANE BUETTNER, 

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Plaintiff and Appellant, 

-vsSTATE OF MONTANA, DEPARTMENT OF LABOR 

& INDUSTRY, et al., 

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Defendants and Respondents. ->, - -1 

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APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas Honzel, Judge presidinq. 

COIJMSEL OF RECORD: 

For Appellant: 

Duane Buettner, pro se, Wolf Point, Montana 

For Respondent: 

Scott W. Wilson, Billings, Montana 

- 

Submitted on Briefs: Oct. 13, 1983 

Decided: December 28, 1989 

Filed: 
~ustice John Conway ~arrison delivered the Opinion of the 

Court. 

Appellant Buettner, pro se, appeals a decision of the 

District Court of the ~irst ~udicial District, ~ewis and 

Clark County, wherein the ~istrict Court granted respondents' 

motion to dismiss appellant's complaint against the State 

because appellant failed to comply with § 2-9-301, MCA. 

Appellant raises essentially one issue for review: Is 

the application of S 2-9-301, MCA, to this case 

unconstitutional because the cause of action arose prior to 

the effective date of the statute? 

In late 1984, the State terminated appellant's 

employment effective December 31, 1984. On November 11, 

1987, appellant filed a tort action against the State. The 

State was served with the complaint in early October of 1988 

and on October 31, 1988, the State filed its motion to 

dismiss. Relying on § 2-9-301, MCA, the District Court 

granted the State's motion to dismiss appellant's complaint. 

Some time after briefs were filed on the motion to 

dismiss but prior to the ~istrict Court's decision, appellant 

removed his counsel and has continued pro se. 

Section 2-9-301, MCA, provides in pertinent part: 

(1) All claims against the state arising 

under the provisions of parts 1 through 3 

of this chapter must be presented in 

writing to the department of 

administration. 

(2) A complaint based on a claim subject 

to the provisions of subsection (1) ma17 

not be filed in district court unless the 

claimant has first presented the claim to 

the department of administration and the 

department has finally denied the claim. 

The department must grant or deny the 

claim in writing sent by certified mail 

within 120 days after the claim is 
presented to the department. The failure 

of the department to make final 

disposition of a claim within 120 days 

after it is presented to the department 

must be considered a final denial of the 

claim for purposes of this subsection. 

Upon the department's receipt of the 

claim, the statute of limitations on the 

claim is tolled for 120 days . . . 

The 1987 Legislature added subsection (2) of S 2-9-301, MCA, 

which became effective October 1, 1987. Appellant filed his 

complaint on November 17, 1987 without first presenting his 

claim to the department as required by 5 2-9-301, MCA. 

Appellant, through counsel, argued to the District 

Court that S 2-9-301, MCA, could not constitutionally be 

applied to a cause of action which arose prior to October 1, 

1987. Because his cause of action arose in 1984, appellant 

contended that he did not have to comply with 5 2-9-301, MCA. 

In holding that § 2-9-301, MCA, could constitutionally 

be applied to causes of action which arose prior to October 

1, 1987, the District Court reasoned that the mandatory 

initial filing with the department imposed by the statute was 

procedural. The filing requirement did not in any way alter 

or restrict appellant's underlying cause of action. Thus, 

the District Court found that because the underlying cause of 

action was not impaired by the mandatory department 

evaluation, the statute could be applied to causes of action 

that arose prior to October 1, 1987. We agree. 

The Legislature can impose procedural requirements on a 

plaintiff before a plaintiff can file a complaint in court as 

long as the procedures do not impair any of a plaintiff's 

substantive rights. Appellant cites no authority to the 

contrary. Also, appellant fails to demonstrate how his 

substantive rights are impaired. 
The right plaintiff acquired in late 1984 was the right 

to bring a tort claim against the State. Section 2-9-301, 

MCA, is a procedural statute which limits direct access to 

the courts for at most 120 days while the Department of 

Administration evaluates the claim. Moreover, subsection (2) 

specifically provides that the statute of limitations for the 

claim is tolled for 120 days. Thus, a plaintiff is not 

penalized in terms of statute of limitation considerations by 

the mandatory review procedure. As appellant acknowledges 

the review procedure imposed by § 2-9-301, MCA, preserves a 

plaintiff's right to file a tort claim in court against the 

State. 

Although appellant's argument is unclear, appellant 

appears to contend that even if .§ 2-9-301 can be applied the 

District Court had discretion to fashion some other remedy 

other than outright dismissal of the complaint. Outright 

dismissal of the complaint, appellant argues, was 

fundamentally unfair because the statute of limitations had 

run on the tort claim at the time of the dismissal order. 

However, once the District Court determined that the statute 

applied to appellant's claim, it had no choice but to dismiss 

the complaint for failure to comply with § 2-9-301, MCA. It 

may be unfortunate for appellant that the statute of 

limitations had run on his tort claim, but it is not 

fundamentally unfair. Montana's statutes of limitations 

apply equally to all plaintiffs who are subject to them. 

However, while we must affirm the trial judge in 

granting summary judgment in this case, we call to the 

attention of the plaintiff who brought this case to us pro 

se, that under the provisions of .§ 27-2-407, MCA, he is 

allowed to bring a new action for the same cause after the 

expiration of the time so limited and within one year after 

such reversal or termination. Such action must be done in 
accordance with the provisions of S 2-9-301, MCA, and before 

March 16, 1990. If the appellant gives notice to the State 

pursuant to § 27-2-407, MCA, the running of the statute is 

tolled. 

In summary, § 2-9-301, MCA, mandates a procedure 

whereby all tort claims against the State must be filed with 

and reviewed by the Department of Administration. Appellant 

failed to comply with the law. The District Court properly 

dismissed the complaint. 

We concur: A