                                 No. 89-199
                IN THE STJPREME COURT OF THE STATE OF MONTANA
                                    1989



DUANE BUETTNER,
                                                                               "
                 Plaintiff and Appellant,
         -vs-
STATE OF MONTANA, DEPARTMENT OF LABOR
& INDUSTRY, et al.,
                                                                                             0
                 Defendants and Respondents.                        P-
                                                                    ->,            -
                                                                                   1
                                                                    +.c            -)
                                                                    -+r-
                                                                    -    fIX,      g
                                                                         -1

                                                                    .;
                                                                    c    -7-            cs
                                                                     0                  0
                                                                     C


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 ~ i r s t~udicial District, ~ e w i s and
Clark County, wherein the ~istrictCourt 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 ~istrictCourt'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
