Kraft v


                                           Kraft v. Board of Med. Examiners
                                                 Decided Feb. 18, 1998
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 97-273

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1998 MT 31N

                                                  JEFFREY G. KRAFT, D.O.,

                                                      Plaintiff and Appellant,

                                                                      v.

                                     BOARD OF MEDICAL EXAMINERS, et al.,

                                                Respondents and Respondents.

                        APPEAL FROM: District Court of the Third Judicial District,

                                           In and for the County of Deer Lodge,

                                    The Honorable Ted L. Mizner, Judge presiding.

                                                   COUNSEL OF RECORD:

                                                            For Appellant:

                                     Robert C. Kelleher, Sr.; Kelleher Law Office,

                                                            Butte, Montana

                                                          For Respondents:

                                      James P. Harrington, Attorney at Law, Butte,

                                                                 Montana



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                                          Submitted on Briefs: December 11, 1997

                                                  Decided:         February 18, 1998

                                                          MEMORANDUM


¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not
be cited as precedent but shall be filed as a public document
with the Clerk of the Supreme Court and shall be reported by case
title, Supreme Court cause number and result to the State
Reporter Publishing Company and to West Group in the quarterly
table of noncitable cases issued by this Court.


¶2 The Board of Medical Examiners (Board) revoked the license
of Dr. Jeffrey G. Kraft (Kraft) to practice medicine. Briefly
stated, the Board's order was based on a history of alcohol and
chemical dependency by Kraft and his subsequent agreements to
abstain from alcohol and mood-altering drugs. During a move to
the state of Kansas, Kraft relapsed, lost his license to practice
and faced felony criminal drug charges. His probation in the
criminal case also required that he abstain from alcohol and
drugs. Finally, in August of 1994, Kraft entered into a
stipulation and agreed order of probation with the Board wherein
he admitted he was chemically dependent and addicted and agreed
to scrupulously comply with his earlier agreements and the
conditions of his federal probation. He also agreed that any
violation "would be grounds for termination of probation and . .
. summary suspension of his medical license, or additional
disciplinary proceedings." Subsequently, Kraft was determined to
have violated the 1994 agreement. In November of 1995, a
screening panel of the Board advised Kraft that he could have
"one more chance." Kraft entered into yet another agreement and
also a stipulation which revoked his license, but stayed the
revocation so long as Kraft did not violate the agreed terms and
conditions regarding abstention from alcohol and drug use. This
stipulation, much like the earlier agreement, stated that any
violation by Kraft would be grounds for permanent revocation of

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his medical license. During a subsequent hearing, evidence was
presented that Kraft had consumed alcohol and diverted
prescription drugs to himself from a woman friend. The Board
revoked his license.


¶3 Kraft filed a pleading attempting to "appeal" the Board's
order revoking his license and to obtain injunctive and monetary
relief against the Board and others in the Third Judicial
District Court, Deer Lodge County. The Board moved to dismiss
and the District Court granted the motion. The court dismissed
Kraft's complaint seeking review of the Board's order for failure
to comply with mandatory pleading requirements for judicial
review and dismissed Kraft's claims for injunctive relief and
monetary damages for failure to state a claim on which relief
could be granted. Kraft appeals and we affirm.


¶4 A petition for judicial review of an agency decision must be
filed in the district court where the petitioner resides, where
the petitioner's principal place of business is located or where
the agency's principal office is maintained. Section 2-4-
702(2)(a), MCA. Such a petition also must include the following
pleading requirements set forth in Sec. 2-4-702(2)(b), MCA: "a
concise statement of the facts upon which jurisdiction and venue
are based, a statement of the manner in which the petitioner is
aggrieved, and the ground or grounds specified in 2-4-704(2) upon
which the petitioner contends he is entitled to relief." In
addition, the petition generally may not raise any question not
raised before the agency. Section 2-4-702(1)(b), MCA; Davis v.
Davis (1996), 277 Mont. 188, 190, 921 P.2d 275, 276.


¶5 Here, Kraft's initial pleading was a 12-page document
captioned "Appeal from Order of Board of Medical Examiners, Dept.
of Commerce and Petition for (1) Temporary Restraining Order
[Writ of Mandate] and Order to Show Cause Why TRO Should Not be
Made Permanent; (2) Restraining Order [Writ of Prohibition]
Directing Respondent Board to Cease and Desist Censuring
Petitioner's License; and (3) 42 USC 1983 Relief." The first

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four pages of the pleading relate to Kraft's "appeal" from the
Board's order revoking his license, while the remaining pages set
forth four causes of action against the Board and its members.
We observe, at the outset, that the pleading is, in an overall
sense, primarily a complaint for various types of relief against
the Board and its members rather than a petition for judicial
review.


¶6 Moreover, having reviewed the pleading, it is clear that
nowhere in the portion of the pleading relating to the "appeal"
from the Board's order--that is, the portion of the pleading
seeking judicial review--does Kraft set forth a concise statement
of the facts on which venue is based as required by Sec. 2-4-
702(2)(b), MCA. Given that Kraft's pleading was filed in Deer
Lodge County and that the Board's principal office is maintained
elsewhere, the required statement of facts regarding venue would
need to allege either that Kraft resides in Deer Lodge County or
that his principal place of business was Deer Lodge County. No
such allegation appears in the judicial review portion of the
pleading.


¶7 Kraft argues that paragraph 5 states that his principal
place of business was the Anaconda-Deer Lodge County hospital and
that this suffices as a statement of the facts on which venue was
based. Paragraph 5, however, states as follows: "[T]he Board
interfered with and violated the constitutional [sic] protected
right to contract Petitioner had with HOSPITAL to furnish
Emergency Medical care to Anaconda-Deer Lodge County patients
using HOSPITAL's facilities[.]" This general allegation relates
to a claimed violation of Kraft's right to contract. It does not
state that Deer Lodge County--or the hospital in Anaconda-Deer
Lodge County--is Kraft's principal place of business and, thus,
it does not constitute a factual statement establishing venue as
required in a petition for judicial review.


¶8 Kraft's pleading seeking judicial review also does not state
the "ground or grounds specified in 2-4-704(2) upon which [he]

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contends he is entitled to relief," as required in Sec. 2-4-
702(2)(b), MCA. Section 2-4-704(2), MCA, contains a careful
enumeration of the bases on which a district court may reverse or
modify an agency's decision if substantial rights of the person
seeking judicial review were prejudiced, and one or more of those
specified bases must be raised with regard to the findings or
conclusions made by the agency. Sections 2-4-704(2) and 2-4-
702(2)(b), MCA; Davis, 921 P.2d at 276. Having reviewed the
pleading, we determine that this requirement was not met. No
specific subsection of Sec. 2-4-704(2), MCA, is referenced at any
point in the judicial review portion of the pleading. Indeed,
the only reference to the statute comes at the end of the portion
of the pleading seeking judicial review, in a listing of
"APPLICABLE STATUTES." Even there, the reference is merely to
"Sec.2-4-704," without specific enumeration or relation to any
argument which precedes the reference. Moreover, while Kraft
made general assertions of constitutional violations in that
portion of his pleading, they were not tied to specific portions
of the Board's order and, indeed, appear to have been raised for
the first time in the purported petition for judicial review in
derogation of Sec. 2-4-702(1)(b), MCA, which generally prohibits
a party seeking judicial review from raising questions not raised
before the agency. For these reasons, we conclude that Kraft has
not established any abuse of discretion in the District Court's
dismissal of his petition for judicial review.


¶9 Kraft also challenges the District Court's dismissal of the
four causes of action set forth in his pleading, in addition to
the request for judicial review of the Board's order, for failure
to state a claim. The causes of action sought injunctive relief,
alleged tortious interference with Kraft's contractual rights,
alleged a claim for money damages under Sec. 1983 and sought
punitive damages based on alleged malicious conduct of the
defendants toward Kraft during the proceedings which resulted in
the revocation of his license to practice medicine. There are
several problems with the inclusion of these causes of action in
this case.




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¶10 First, Kraft cites to no authority under which independent
causes of action against an agency relating to its decision made-
-and judicially reviewable--under the Montana Administrative
Procedure Act properly can be included in a petition for judicial
review of the decision. As the statutes governing judicial
review indicate, judicial review proceedings are intended to be
straightforward and limited reviews--generally on the record
only--of a final decision by an agency. See Secs. 2-4-702 though
2-4-704, MCA. They are not intended to relitigate issues
resolved by the agency or to add new and previously unresolved
claims.


¶11 Moreover, Kraft advances no legal authority under which
these particular causes of action could be brought against the
Board and its members at all as a result of the decision revoking
his license. Injunctive relief is inappropriate in such a
context where a stay of the agency's decision can be sought
within the parameters of the judicial review proceeding. See
Sec. 2-4-702(3), MCA. Nor do Kraft's causes of action state the
breach of any duty owed him by the Board on which liability could
be premised in tort or otherwise.


¶12 Kraft's sole argument in this regard is that each cause of
action contained allegations that he had received a license to
practice medicine from the Board in 1995 and that he served as
Director of Emergency Medicine at the hospital in Anaconda,
Montana, "with distinction and the utmost competency" until
August of 1996. According to Kraft, these allegations establish
the duty owed by the Board on which all of his causes of action
rest. We disagree. Nothing in the referenced allegations states
a legal duty the breach of which could form the foundation for
liability by the Board or its members. Thus, we conclude that
Kraft has not established any abuse of discretion by the District
Court in dismissing his four causes of action for failure to
state a claim on which relief could be granted.


¶13 Affirmed.

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CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON, REGNIER and HUNT
concur.




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