09/30/2025
DA 25-0198
Case Number: DA 25-0198
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 224N
AUSTIN LAKE,
Petitioner and Appellant,
v.
MONTANA DEPARTMENT OF LABOR &
INDUSTRY, HUMAN RIGHTS BUREAU,
Respondents and Appellees.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Sanders, Cause No. DV-24-96
Honorable Molly Owen, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Austin Lake, Self-Represented, Kalispell, Montana
For Appellee:
Samuel A. Fossum, Agency Counsel, Department of Labor and
Industry, Helena, Montana
Submitted on Briefs: August 6, 2025
Decided: September 30, 2025
Filed:
__________________________________________
Clerk
Justice Katherine Bidegaray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Austin Lake (Lake) appeals the February 12, 2025 Order on Petition for Judicial
Review in favor of the Human Rights Bureau of the Montana Department of Labor &
Industry (HRB), entered by the Montana Twentieth Judicial District Court, Sanders
County, which dismissed Lake’s claims against the HRB and dismissed, as parties, Shaunie
Aklestad and Kimberly Cobos, who were named as Defendants in their individual
capacities. We affirm.
¶3 This matter began on March 27, 2023, when Lake filed a discrimination complaint
with the EEOC, alleging his employer at the time, Town Pump, discriminated against him
in violation of the Montana Human Rights Act (MHRA) and Title I of the Americans with
Disabilities Act. The parties settled the matter on May 17, 2023. Starting a few days before
the settlement and continuing through August 2023, Lake alleged he applied for multiple
jobs, including several with Town Pump, listing Town Pump as a reference. He was not
hired for any of them. On August 23, 2023, Lake filed his previously settled EEOC
complaint as a petition with the HRB, alleging that Town Pump retaliated against him by
“providing negative references to prospective employers, and failure to hire [Lake].” Lake
alleged violations of the MHRA, Title I of the ADA, and the Age Discrimination Act.
2
¶4 On February 7, 2024, the HRB released a Final Investigative Report, finding no
reasonable cause to believe unlawful retaliation occurred. Lake timely objected to the
HRB’s findings on February 25, 2024. On May 30, 2024, the Montana Human Rights
Commission (HRC) issued a Final Agency Decision affirming the HRB’s findings.1
¶5 As allowed by § 2-4-702, MCA, and within the 30-day time limit provided in
§ 49-2-511(3)(b), MCA, on June 26, 2024, Lake petitioned the District Court for judicial
review of the Final Agency Decision. On October 8, 2024, the District Court affirmed the
Final Agency Decision. On October 10, 2024, rather than appeal to this Court pursuant to
§ 2-4-711, MCA, Lake filed with the District Court a document he entitled “PETITION
FOR JUDICIAL REVIEW” (Second Petition).
¶6 In his Second Petition, Lake alleged that the HRB violated Article II, Section 17,2
and Article II, Section 183 of the Montana Constitution, and asserted Shaunie Aklestad and
Kimberly Cobos were individually liable under Article II, Section 94, and Article II,
Section 18, of the Montana Constitution. On October 24, 2024, Lake filed an initial brief
in which he explained that he sought review of “failure to address multiple complaints
presented to both investigators of retaliatory actions by the former employer against the
1
The Final Agency Decision acknowledges the Department (HRB) issued a Notice of Dismissal,
so we assume the Notice of Dismissal pre-dates the May 30, 2024 Final Agency Decision.
2
“No person shall be deprived of life, liberty, or property without due process of law.”
3
“The state . . . shall have no immunity from suit for injury to a person or property, except as may
be specifically provided by law by a 2/3 vote of each house of the legislature.”
4
“No person shall be deprived of the right to examine documents or to observe the deliberations
of all public bodies . . . .”
3
plaintiff for filing initial complaints for which has also been concluded by investigator
Shaunie Aklestad.”
¶7 The HRB’s attorney filed a Notice of Appearance on November 13, 2024. On
January 14, 2025, the HRB filed a motion to dismiss Lake’s Second Petition, pursuant to
M. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction. The HRB alternatively
argued that, if the court were to determine whether the petition could proceed under a new
civil action, it would be time barred and that HRB employees, Shaunie Aklestad and
Kimberly Cobos, were immune from suit as employees of the state working within the
course and scope of their employment. On the same day the HRB filed its motion, the
HRB served copies of it to Lake at the address Lake provided on his Second Petition and
at a Missoula address Lake provided in filings in a concurrent proceeding.
¶8 On February 4, 2025, the HRB filed a notice of issue and asked the District Court
to rule on the matter. On February 12, 2025, the District Court granted the HRB’s motion
to dismiss for lack of subject matter jurisdiction and dismissed Shaunie Aklestad and
Kimberely Cobos as parties. On February 14, 2025, Lake filed his own notice of issue
requesting “relief from judgment or order” under M. R. Civ. P. 60(4), arguing that the HRB
had failed to file a motion or answer his brief. Lake timely filed his Notice of Appeal to
this Court on March 13, 2025.
¶9 We review a district court’s conclusions of law for correctness. Jacky v. Avitus,
2013 MT 296,
372 Mont. 134,
311 P.3d 423. We review de novo a Rule 12(b)(1) dismissal
for lack of subject-matter jurisdiction and may consider the complaint alone to determine
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jurisdiction. Harrington v. Energy West Inc., 2015 MT 233, ¶¶ 7-9,
380 Mont. 298,
356 P.3d 441.
¶10 On appeal, Lake argues that the District Court incorrectly dismissed the Second
Petition, violated procedural rules, ignored critical factual allegations, prematurely granted
dismissal, improperly declared him vexatious5 and erroneously accepted the HRB’s
untimely and procedurally improper filings. Lake requests this Court to reverse the District
Court’s decision affirming the HRC’s Final Agency Decision and direct it to consider his
claims properly. The HRB argues that (1) the District Court lacked subject matter
jurisdiction over Lake’s Second Petition because Lake was required either to file his
Second Petition with the HRB or to appeal to this Court the District Court’s decision
affirming the HRC’s Final Agency Decision; (2) even if Lake had filed the Second Petition
with the HRB instead of the District Court, it was untimely; and (3) that Kimberely Cobos
and Shaunie Aklestad should be dismissed as parties. Lake also alleges the District Court
wrongfully dismissed his claim because he did not receive proper notice of the HRB’s
motion to dismiss, thereby depriving him of an opportunity to respond. We address the
notice argument first.
Lake Received Proper Notice
¶11 Due process expresses the requirements of fundamental fairness. City of Missoula
v. Mountain Water Co.,
2016 MT 183, ¶ 25,
384 Mont. 193,
378 P.3d 1113. The
requirements for procedural due process are notice and an opportunity to be heard.
5
Lake was declared a vexatious litigant on December 9, 2024, in a separate Twentieth Judicial
District Court proceeding, Cause No. DV-24-97.
5
Mountain Water Co., ¶ 25. While due process requires notice and an opportunity to be
heard appropriate to the circumstances of the case, “the process due in any given case varies
according to the factual circumstances of the case, the nature of the interests at stake and
the risk of making an erroneous decision.” Montanans for Justice v. State ex rel. McGrath,
2006 MT 277, ¶ 30,
334 Mont. 237,
146 P.3d 759.
¶12 The HRB filed its motion to dismiss on January 14, 2025, and mailed a copy to Lake
at the address he provided on his Second Petition and to a Missoula address that Lake
provided HRB in a concurrent separate proceeding. Because HRB mailed its motion to
dismiss to Lake at the address Lake provided on his Second Petition, Lake had proper
notice. Under MUDCR 2(b) and M. R. Civ. P. 6(d), Lake had 17 days to respond, giving
Lake until January 31, 2025, to respond. The District Court did not grant the HRB’s motion
to dismiss until February 12, 2025. Therefore, the District Court did not prematurely
address HRB’s motion.
Montana Human Rights Act
¶13 The MHRA, codified in Title 49 of the Montana Code Annotated, protects
employees from discrimination. Section 49-1-102(1), MCA. When an employee alleges
a violation of chapters 2 or 3 of the MHRA, “including acts that may otherwise also
constitute a violation of the discrimination provisions of Article II, section 4, of the
Montana constitution or [§] 49-1-102[, MCA],” a district court may not entertain a claim
or request for relief “other than by the procedures specified in [Title 49, chapter 2, MCA]”;
and the MHRA provides the “exclusive remedy” for the violation. Section 49-2-512(1).
MCA. A charging party may file a complaint with the HRB. Section 49-2-512(1), MCA.
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¶14 If the HRB dismisses the charging party’s complaint, the party may either
commence a civil action within 90 days or file an objection to the dismissal with
the HRC within 14 days. Sections 49-2-512(3), -511, MCA. The HRC shall consider
timely objections in an informal hearing and review the department’s findings.
Section 49-2-511(2)(a), MCA. The HRC considers timely objections and reviews the
HRB’s findings in an informal hearing. Section 49-2-511(b), MCA. The HRC may affirm
the HRB’s findings and issue a final agency decision on the matter or remand the case back
to the HRB. Section 49-2-511(2)(c), MCA.
¶15 If the HRC affirms, the charging party may file with a district court: (1) pursuant to
§ 49-2-511(3)(a), MCA, a civil action for appropriate relief on the merits within 90 days
of the Final Agency Decision; (2) in accordance with § 49-2-511(3)(b), MCA, a petition
for judicial review within 30 days of the HRB’s notice of dismissal; or (3) pursuant to
§ 49-2-512(3), MCA, a civil action for appropriate relief on the merits within 90 days of
the HRB’s notice of dismissal. Here, the record does not contain the HRB’s notice of
dismissal; but the Final Agency Decision acknowledges the Department (HRB) issued a
Notice of Dismissal, so we assume the Notice of Dismissal pre-dates the May 30, 2024
Final Agency Decision and, in Lake’s favor, we use the date of the Final Agency Decision
to calculate the statutory timelines.
Lake’s Second Petition as a Petition for Judicial Review
¶16 The petition for judicial review Lake filed on June 26, 2024, after the HRC’s
May 30, 2024 Final Agency Decision, was timely because he filed it within 30 days
of the Final Agency Decision. Sections 2-4-702, 49-2-511(3)(b), MCA. However, Lake
7
followed no legally recognized procedure when he filed the Second Petition with the
District Court on October 10, 2024. If Lake intended the Second Petition to be a petition
for judicial review, it fails for two reasons. First, the District Court lacked subject matter
jurisdiction over it because Title 49, chapter 2, provides (1) the exclusive remedy for
violations of the MHRA and claims like those Lake raised in it; and (2) a district court may
not entertain a claim or request for relief, based upon acts governed by the MHRA.
Section 49-2-512(1), MCA. If Lake sought redress for the District Court’s October 8, 2024
order affirming the HRC’s Final Agency Decision, his legally allowable option was to
appeal to this Court, pursuant to § 2-4-711, MCA, within 60 days of entry of judgment.
¶17 Second, Lake would have had to file his Second Petition with the District Court
within 30 days of the Final Agency Decision. Section 49-2-511(3)(b), MCA. Since the
Final Agency Decision issued on May 30, 2024, Lake’s October 10, 2024 filing was late.
¶18 For those reasons, the District Court correctly dismissed Lake’s Second Petition for
lack of subject matter jurisdiction.
Lake’s Second Petition as a Civil Action
¶19 If Lake intended to commence a civil action for relief on the merits of the case
addressed in either the HRC’s Final Agency Decision, as allowed by § 49-2-511(3)(a),
MCA, or the HRB’s notice of dismissal, as allowed in § 49-2-512(3), MCA, he was late.
He had 90 days from the HRC’s Final Agency Decision, under § 49-2-511(3)(a), MCA, or
90 days from the HRB’s notice of dismissal, under § 49-2-512(3), MCA, to commence a
civil action. Because the HRC delivered its Final Agency Decision on May 30, 2024, and
the HRB issued its notice of dismissal sometime before that, Lake had 90 days—until
8
August 28, 2024, at the latest—to commence a civil action. Lake filed his Second Petition
on October 10, 2024, well beyond the 90-day statutory limit.
¶20 For these reasons, the District Court correctly dismissed Lake’s Second Petition
even if he meant to commence a civil action by filing it.6
¶21 We decide this case by memorandum opinion pursuant to Section 1, Paragraph 3(c)
of our internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of the applicable standards of review. The District Court’s interpretation and
application of the law were correct. Affirmed.
/S/ KATHERINE M BIDEGARAY
We Concur:
/S/ CORY J. SWANSON
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ JIM RICE
6
Section 2-9-305, MCA, provides for individual immunity from suit for government employees
and public officers when their actions were taken within the course and scope of their employment.
Gardiner-Park County Water and Sewer District v. Knight, 2024 MT 121,
417 Mont. 1,
549 P.3d
1151. However, we need not address Lake’s claims against the two state employees because Lake
did not appeal the District Court’s order affirming the HRC’s Final Agency Decision and either
the District Court lacked subject matter jurisdiction to consider the Second Petition or the Second
Petition was time barred if Lake intended it to commence a civil action.
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