No. 90-228
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA, BOARD OF DENTISTRY,
Plaintiff, Respondent
and Cross-Appellant,
VS.
R. BRENT KANDARIAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James C. Bartlett, Hash, O'Brien & Bartlett,
Kalispell, Montana
For Respondent:
I. James Heckathorn, Murphy, Robinson,
Heckathorn & Phillips, Kalispell, Montana
John H. Maynard, Department of Administration,
Helena, Montana
Submitted: March 7 , 1 9 9 1
Decided: June 4, 1991
Filed:
Justice William E. Hunt, Sr. delivered the opinion of the
Court.
The Eleventh Judicial ~istrict
Court, Flathead County, granted
the State of Montana, Board of Dentistry's, motion for summary
judgment on the issue of immunity, and denied its motion to vacate
a previous order granting summary judgment against it on the issue
of injunctive relief. Both parties appeal.
We reverse on the issue of immunity and affirm on the issue
of injunctive relief.
We will address two issues on appeal:
1. Is the State of Montana, Board of Dentistry, immune from
suit because it is a quasi-judicial body?
2. Did the District Court err in granting summary judgment
to the defendant Kandarian on the issue of injunctive relief?
TMJ, or temporomandibular joint dysfunction, is a medical/
dental problem. R. Brent Kandarian, a denturist and head of the
State Board of Denturitry, advertised in a local paper that he
would perform "TMJ evaluations," On August 26, 1986, a dentist
wrote to the Board of Dentistry (Board) requesting an investigation
into the alleged illegal practice of dentistry by Kandarian. He
stated in his letter that evaluating TMJ was the practice of
dentistry, and that he had personal knowledge of an offer by
Kandarian to treat a patient with TMJ disorder via construction of
a partial denture.
The Board wrote to Kandarian on September 22, 1986, informing
him of the complaint. On the same day, the Board of Denturitry was
informed of the complaint against Kandarian. Kandarian responded
that the Board had no power to regulate his denturitry practice.
The Board met on November 12, 1986, and without investigation,
decided to ask Flathead County to file criminal charges against
Kandarian. While Flathead County was deciding that issue, the
Board's counsel released the contents of the complaint against
Kandarian to the press. Flathead County refused to prosecute, and
on February 2, 1987, the Board filed for an injunction against
Kandarian.
The Board identified James Stobie, D.D.S., as the expert
witness who would testify as to whether TMJ evaluations were within
the practice of denturitry. His deposition stated that as long as
a denturist is practicing denturitry, it would be misfeasance or
malfeasance not to do a TMJ evaluation while fitting for "partials1'
or Itfulls.
Kandarian counterclaimed and moved for summary judgment. The
Board asked for Itfollowup discoveryI1 and represented that it had
witnesses who would be contacted and who would produce, by way of
affidavit, evidence that Kandarian had done nondenture work on
them.
On January 8, 1988, the court dismissed the complaint against
Kandarian because the Board had failed to produce affidavits
showing that Kandarian had performed work on the natural teeth of
two individuals previously named by the Board.
On February 25, 1988, the Board filed an amended response to
Kandarianls counterclaim, claiming immunity for damages on the
basis of its quasi-judicial status. In a January 1989 order
denying immunity for the Board, the court found that lack of
substantial investigation into the allegations against Kandarian
raised questions of material fact as to whether the Board was
performing its official duties. On March 13, 1989, Kandarian filed
an amended answer and counterclaim, alleging breach of right of
privacy, wrongful injunction, intentional interference with
business and patients, slander and libel, wrongful civil
litigation, abuse of process, outrage and intentional infliction
of emotional distress, and negligence.
On February 8, 1990, the court issued a two-part order:
first, the order denied the Board's motion to vacate the previous
order granting summary judgment to Kandarian. Second, it vacated
the January 1989 order and found immunity for the Board on the
grounds that in the absence of rules for investigations, the
statute provided that the Board could seek injunction under 5 37-
4-328(3), MCA. The court denied Kandarianls motion for attorney
fees on March 15, 1990.
Judgment was filed on March 15, 1990, and Kandarian and the
Board appealed.
Is the Board immune from suit because it is a quasi-judicial
body?
The District Court's finding that the Board is immune from
suit on the basis of quasi-judicial immunity is erroneous. We
extended quasi-judicial immunity to administrative boards in Koppen
v. Board of Medical Examiners, 233 Mont. 214, 759 P.2d 173 (1988).
In that case, we stated that the discretion vested in the Board of
Medical Examiners to determine whether or not to adjudicate an
alleged violation by a licensee rendered it a quasi-judicial body.
We referred to the notice and hearing requirements of the Montana
Administrative Procedures Act (MAPA), and the fact that the
decision is subject to judicial review, to support our holding that
the Board of Medical Examiners is quasi-judicial and absolutely
immune in the exercise of that authority. Koppen, 233 Mont. at
219, 759 P.2d at 176. In Koppen we cite Butz v. Economou, 438 U.S.
We think that adjudication within a federal adminis-
trative agency shares enough of the characteristics of
the judicial process that those who participate in such
adjudication should also be immune from suits for
damages.
In this case, the Board was proceeding against a nonlicensee
under 37-4-328(3), MCA. That section does not require an
administrative hearing before the Board under MAPA, but allows the
attorney general, county attorney, or board to seek injunctive
relief.
When the Board sought an injunction in the ~istrictCourt, it
put itself in the role of litigant or advocate, not adjudicator.
Once it invoked the jurisdiction of the court under 5 37-4-328,
MCA, it acted as a litigant and was not immune from suit.
The Board also claims immunity similar to that enjoyed by
prosecutors. While it is true that Koppen, citing Butz, states
that "agency officials performing certain functions analogous to
those of a prosecutor should be able to claim absolute immunity
with respect to such actsl1l does not say that all board actions
it
are immune. Koppen, 233 Mont. at 219, 759 P.2d at 176. In State
ex. rel. Dept. of Justice v. District Court, 172 Mont. 88, 92, 560
P.2d 1328, 1330, we affirmed prosecutorial immunity for the State
of Montana and the Department of Justice, noting that:
When a prosecutor acts within the scope of his duties by
filing and maintaining criminal charges he is absolutely
immune from civil liability, regardless of negligence,
or lack of probable cause.
In Dept. of Justice, we explain that concern over harassment by
unfounded litigation could cause a prosecutor to shade decisions
and affect the independence of judgment necessary to the
administration of the criminal justice system.
The prosecutorls independence is checked by procedural safe-
guards inherent in the system, such as probable cause investiga-
tion, swearing under oath, etc. However, here we are not presented
with a similar situation. The Board proceeded against Kandarian
without any investigation of the allegations against him. It did
not interview Kandarian himself. It released sensitive material
to the press about a possible criminal action without notice to
Kandarian. The Board was not bound by and did not adhere to a
process that provided any safeguards for Kandarian. It therefore
does not enjoy the immunity afforded the prosecutor.
We reached the issue of state liability in Lima School
District No. 12 v. Simonsen, 210 Mont. 100, 683 P.2d 471 (1984).
In Lima, the school district claimed sovereign immunity on a
counterclaim for damages arising from a suit it instigated. We
denied immunity, stating:
The School District itself initiated this lawsuit. It
would be especially inequitable to allow the state to
bring an action for payment by mistake and vest them with
immunity from suit in related matters. The better rule
is to recognize that whenever the state brinqs an
equitable action it waives any applicable sovereiqnty and
opens the door to a defense or counterclaim qermane to
the matter in controversv.
Lima, 210 Mont. at 772, 683 P.2d at 477 (emphasis added). Here
the action for injunction was an equitable action, and we adhere
to the "better rule" that the state does not enjoy immunity for its
actions when it seeks injunctive relief in district court.
Did the District Court err in granting summary judgment to the
defendant Kandarian on the issue of injunctive relief?
The District Court granted summary judgment to Kandarian when
the Board sought to enjoin his practice. The only fact before the
District Court was the expert's testimony that TMJ evaluations were
indeed a part of the practice of denturitry. We thus find no abuse
of discretion by the ~ i s t r i c t Court in the grant of summary
judgment in favor of Kandarian.
Reversed in part and affirmed in part.
/
We Concur:
Chief Justice
Justices
Justice Terry N. Trieweiler concurring in part and dissenting in
part :
I concur in part, and dissent in part, from the opinion of the
majority.
I concur with that part of the majority's opinion which holds
that the Board of Dentistry did not have immunity from suit under
the circumstances in this case. I also concur with that part of
the majorityl opinion which affirmed the District Court s award
s
of summary judgment on the issue of injunctive relief.
However, I dissent from the majority's failure to award
attorney fees to Kandarian pursuant to Rule 11, M.R.Civ.P. That
rule was designed to discourage the filing of claims which have no
merit and to compensate people like Kandarian who have to expend
substantial sums to defend against nonmeritorious claims. The key
to invocation of the rule is whether an adequate investigation has
been done by the complaining party before putting his opponent to
the expense of litigation. The rule provides:
The signature of an attorney or party constitutes a
certificate by him that he has read the pleading, motion,
or other papers; that to the best of his knowledge,
information, and belief formed after reasonable inquiry
it is well grounded in fact and is warranted by existing
law or a good faith argument for the extension,
modification, or reversal of existing law, and that it
is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase
in the cost of litigation.
If a pleading, motion, or other paper is signed in
violation of this rule, the court, upon motion or upon
its own initiative, shall impose upon the person who
signed it, a represented party, or both, an appropriate
sanction, which may include an order to pay to the other
party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion,
or other paper, including a reasonable attorney's fee.
(Emphasis added.)
In this case, the Board of Dentistry made no reasonable
inquiry prior to filing its claim for injunctive relief and naming
Kandarian as a defendant. A member of the Association had sent it
a copy of an ad, indicating that Brent Kandarian, a denturist, was
available for "TMJ evaluations.
However, none of Kandarianls patients were interviewed; no
investigation was done; and no experts were consulted prior to the
filing of suit.
After suit was filed, the Board finally retained James L.
Stobie, D.D.S. He was identified in court documents as the Board's
expert for the purpose of establishing that it was a violation of
the Dental Practice Act for a denturist to perform TMJ evaluations.
When he was deposed, however, his testimony was to the contrary.
Dr. Stobie testified that he was the only prosthodontist in
Montana. A prosthodontist has three years of specialized training
after dental school. That training is related to the treatment of
patients who have prosthetic devices. He testified that in the
course fitting patient for dentures not only
permissible, but mandatory for a denturist to perform a TMJ
evaluation and that, in fact, Kandarian would have been negligent
if he had failed to do so.
Subsequent to Dr. Stobie's testimony, the defendant moved for
summary judgment. At the time of that hearing, the Board's
attorney offered to provide the testimony of two witnesses who
would say that Kandarian had worked on their teeth, even though it
was not for the purpose of fitting dentures. The Board was given
ten days to provide such information, but failed to do so. In
fact, one of the witnesses was subsequently offered as a witness
by Kandarian and testified contrary to the representations of the
Board's attorney.
After all of these court proceedings, and expense to the
defendant, summary judgment was entered for the defendant
dismissing the Board's complaint for injunctive relief.
Under these circumstances no "reasonable inquiry1' was
conducted prior to the commencement of this lawsuit, and the
defendant is entitled to an award of reasonable attorney fees and
costs to compensate him for having to unnecessarily participate in
and defend against this action.
Justice Fred J. Weber dissents as follows:
The key facts upon which the majority concluded that the Board
of Dentistry, does not enjoy quasi-judicial immunity as described
in Koppen v. Board of Medical Examiners (1988), 233 Mont. 214, 759
P.2d 173, are stated as follows:
The prosecutorls independence is checked by
procedural safeguards inherent in the system, such as
probable cause investigation, swearing under oath, etc.
However, here we are not presented with a similar
situation. The Board proceeded against Kandarian without
any investigation of the allegations against him. It did
not interview Kandarian himself. It released sensitive
material to the press about a possible criminal action
without notice to Kandarian. The Board was not bound by
and did not adhere to a process that provided any
safeguards for Kandarian. It therefore does not enjoy
the immunity afforded the prosecutor.
The essence of the foregoing holding appears to be that
because the Board did not adhere to a process which provided
safeguards for Kandarian, it had forfeited any immunity afforded
a prosecutor, which apparently would also include the quasi-
judicial immunity described in
We do not have a controversy here which required a Board
hearing in order to determine the contentions of the parties. Here
a Kalispell dentist forwarded his letter to the Board of Dentistry
complaining that Mr. Kandarian was engaged in the illegal practice
of dentistry as appeared from the enclosed copy of an ad which
showed Mr. Kandarian was advertising for dentures, partials,
realigns, fast repairs, and "TMJ evaluation^.^^ That Kalispell
dentist stated he had personal knowledge of Mr. Kandarianls offer
to treat patients for TMJ disorders. By letter dated September 22,
1986, the Board of Dentistry furnished Mr. Kandarian a copy of the
complaint as filed. The Board requested a response and asked that
if facts had been misstated Mr. Kandarian should so state and refer
to documents or witnesses. By letter dated October 31, 1986, the
attorney for the Board of Dentistry again wrote to Mr. Kandarian
with regard to the same complaint. In that letter the attorney
pointed out that the complaint alleged unlicensed practice of
dentistry and referred to the civil and criminal sanctions. It
again asked Mr. Kandarian to advise if the fact allegations were
incorrect. If he felt there was legal justification he should
provide such information. It also invited Mr. Kandarian to stop
the advertising and the attorney would then recommend the closing
of the files. By letter dated November 6, 1986 addressed to the
Board of Dentistry attorney, Mr. Kandarian clearly indicated his
position and stated:
In regards to your letter of October 31, 1986, I must
confess to you that I didn't think it necessary to answer
a complaint of the dental board, when in fact it has
nothing to do with me - nor me with it. If I have
committed a crime, I will answer to the board of
denturitry.
I am not now, nor have I ever practiced dentistry! I am
licensed as a denturist and practice as such. T.M. J.
evaluations certainly fall within my scope of practice,
resardless of what the board of dentistry thinks, and I
will continue to practice accordinsly.
If the board of dentistry would tend to itst own
complaints instead of going on witch-hunts, it would
probably accomplish a whole lot more for the protection
of the people of the state of Montana. (Emphasis
supplied) .
At its November 12, 1986 meeting the Board of Dentistry, which
consists of licensed dentists practicing in Montana, considered the
complaint against Mr. Kandarian. The Board of Dentistry concluded
that it would request the filing of a complaint against Mr.
Kandarian and if the county attorney did not so act, an injunction
should be sought for the unlicensed practice of dentistry.
Such a request was made to the county attorney of Flathead
County. By his letter dated December 30, 1986, the county attorney
demonstrated that he understood the issues and chose not to act,
stating:
I now have had the opportunity to review these materials
together with what I perceive to be applicable Montana
law. It appears to me that the relevant issue is not
whether Mr. Kandarian is engaging in a particular
activity (TMJ evaluations) , but rather whether that
activity (which he does not deny) is prohibited to a
denturist by Section 37-29-402 (3) and, if so, what the
proper remedy would be.
Although I may question whether such conduct is in fact
a violation of that statute, I have little doubt that,
regardless, a criminal prosecution is not the proper
forum in which to seek a resolution. I therefore
respectfully decline to prosecute the complaint. If
either the Board of Dentistry or the Board of Denturity
feels that Mr. Kandarianfs conduct is actionable, it
seems to me that the proper remedy would be an injunctive
action brought by the Board pursuant to either Section
37-4-328 or Section [37-29-4111, M.C.A., respectively.
The county attorney therefore recommended that if the Board of
Dentistry felt that Mr. Kandarianfs conduct was actionable, the
proper remedy would be an injunctive action, which was the
procedure followed by the Board.
The holding of the majority indicates that because of the
failure to make an investigation and a failure to follow a process
which provided safeguards for Mr. Kandarian, there had been a
forfeiture of immunity. I do not understand that conclusion.
The issues as between the parties are quite clear - the Board
of Dentistry believes that the actions taken by Mr. Kandarian
constitute the unlawful practice of dentistry - and Mr. Kandarian,
incidentally the Chairman of the Board of Denturity, believes that
it is not the unlawful practice of dentistry, but the lawful
practice of denturity. A hearing would not have more clearly
established the opposing positions of the two parties. Under those
circumstances, was it improper for the Board of Dentistry to seek
an injunction without a due process hearing?
The specific statutes covering the Board of Dentistry indicate
that their procedure was provided under 5 37-4-328, MCA, which in
pertinent part states as follows:
(3) If a person, firm, or corporation engages in
the practice of dentistry without possessing a valid
license or violates this chapter, the attorney general,
a county attorney, or the board may maintain an action
in the name of this state to enioin the person, firm or
corporation from engaging in the practice of dentistry
Clearly the Board is given both the responsibility to enforce the
statutes with regard to the profession of dentistry and where it
deems advisable, to secure an injunction. This is directly
comparable to the statutory authority of the Board of Medical
Examiners which was involved in the Koppen case. Section 37-3-
326, MCA, states in part as follows:
Notwithstanding any other provision in this chapter,
the board [Board of Medical Examiners] may maintain an
action to enjoin a person from engaging in the practice
of medicine until a license to practice medicine is
procured.
The statutory provisions are directly comparable. There is a
statutory procedure for the Board of Dentistry to conduct hearings
after various notice and due process rights are considered. Again,
these are directly comparable to the provisions for the Board of
~edicalExaminers. I conclude that for our purposes, the statutory
provisions and purposes of the Board of Dentistry and the Board of
Medical Examiners are directly comparable. That leads me to review
Koppen. In Komen we stated the following:
The action or inaction by the Board under attack in
this case is its decision not to strip Dr. Kauffman of
his license when faced with complaints concerning his
professional conduct. The Board's decision whether to
initiate administrative proceedings against a doctor is
analogous to a prosecutor's decision whether to initiate
court proceedings against an alleged criminal. We concur
with the reasoning in Butz that the Board's discretion
might be distorted if it is not immune from suit for
damages arising from such a decision. We hold,
therefore, that in the exercise of its quasi-judicial
authority, the Board is entitled to the absolute immunity
afforded executive officials under the rule in the Butz
decision. ...
Koppen, 233 Mont. at 219-20, 759 P.2d at 176.
In Koppen this Court concluded that the inaction of the Board
of Medical Examiners in any claimed failure to investigate the
activities of a medical doctor were subject to the protection of
quasi-judicial immunity. In the present case, the majority has
concluded that the action of the Board of Dentistry in commencing
an injunction proceeding, one of the options expressly given to
that Board by the statutes controlling the Board, somehow causes
the Board to lose its immunity. I fail to understand the
rationale. I believe the holding in Kop~enis directly on point.
In fact we have a much stronger case for quasi-judicial immunity
here because the Board in fact was attempting to exercise its
obligation to protect the practice of dentistry, whereas the Board
in Koppen had failed to do anything with regard to protecting the
public fromthe alleged unprofessional actions of a medical doctor.
The majority further concludes that under Lima School Dist.
No. 12 v. Simonsen (1984), 210 Mont. 100, 683 P.2d 471, when the
Board sought an injunction, the state does not enjoy immunity. A
more complete analysis is required of the Lima case. The Lima
School District had filed suit against the defendants to recover
money paid under a transportation contract for the transportation
of school children. The defendants counterclaimed, alleging
damages and were awarded $5,000 on their counterclaim. With regard
to the issue of sovereisn immunity, the Court stated as follows:
The School District argues before this Court that
the counterclaim is barred by the doctrine of sovereign
immunity. This issue was not raised in the pleadings or
otherwise at trial. It need not be considered by the
Supreme Court. The School District itself initiated this
lawsuit. It would be especially inequitable to allow the
state to bring an action for payment by mistake and vest
them with immunity from suit in related matters. The
better rule is to recognize that whenever the state
brings an equitable action it waives any applicable
sovereignty and opens the door to a defense or
counterclaim germane to the matter in controversy.
(Citations omitted.)
Lima, 210 Mont. at 112, 683 P.2d at 477.
The case concludes that the issue of sovereisn immunity need
not be addressed because it was not raised in the lower court. It
is true the issue went on to discuss the aspect of inequitability.
I would only point out that this was a proceeding brought for the
recovery of monies paid on a contract theory, to which the
defendants had counterclaimed. Under that fact situation, it seems
entirely appropriate to hold that when the state commenced the
action, it could not defend by stating it was immune. I don't
believe that affords any proper authority for the present decision.
While this presently is an action for an injunction, it is
certainly not comparable to the Lima action.
As a result, I disagree with the conclusion of the majority
that when the Board sought an injunction, it put itself in the role
of the litigant or advocate rather than adjudicator. The Board
only acted in the role assigned to it by the statutes, that being
the attempted prohibition of a non-dentist practicing dentistry.
I fail to see how such conduct could be classed as a giving up of
any quasi-judicial immunity.
I further emphasize that the conclusion in the present case
contradicts our holding in Kowwen. There we concluded that the
Board's decision whether to initiate administrative proceedings is
analogous to a prosecutor's decision. I find no distinction
between that and the Board's decision in the present case to
initiate proceedings requesting an injunction.
In addition, there is the inference that coming to court for
injunctive purposes may have denied due process in some manner.
I fail to understand such a theory. The purpose of coming to court
is to allow the Board of Dentistry and Mr. Kandarian to set forth
their opposing views in court with due process protections under
court rules.
Based on Koppen, I conclude that the Board of Dentistry should
have been granted immunity in this proceeding.
\
I concur in the dissent of Justice Fred J. Weber.