11/16/2021
DA 21-0149 Case Number: DA 21-0149
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 298N
MARK S. IBSEN, M.D.,
Petitioner and Appellant, FILED
v. NOV 1 6 2021
Bowen Greenwood
MONTANA STATE BOARD OF MEDICAL EXAMINERS, Clerk of Supreme Court
State of Montana
Respondent and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. DDV-2016-283
Honorable Christopher D. Abbott, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John P. Flannery, II, Campbell Flannery, Leesburg, Virginia
Brent Flowers, Beebe & Flowers, Helena, Montana
For Appellee:
Graden Marcelle, Montana Department of Labor & Industry, Helena,
Montana
Submitted on Briefs: October 20, 2021
Decided: November 16, 2021
Filed:
Clerk
Justice Beth Baker delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion, 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 Dr. Mark Ibsen appeals the Memorandurn and Order of the First Judicial District
Court, Lewis and Clark County, dismissing with prejudice Ibsen's petition for judicial
review of the Montana State Board of Medical Examiners' (the Board) Amended Final
Order placing Ibsen's medical license on probationary status for 180 days. The dispositive
issue is whether the District Court erred by dismissing Ibsen's petition for judicial review
as untimely. We affirm.
This case stems from a 2013 contested disciplinary action culminating in the
Board's 2016 order indefinitely suspending Ibsen's license. In 2018, Ibsen successfully
petitioned the District Court for judicial review, citing procedural errors. After the matter
was reinanded to the Board, it assigned a new hearing exaininer to review the case.
¶4 On March 19, 2020, Ibsen inoved the District Court for a writ of mandamus, alleging
inaction by the hearing examiner and the Board in resolving his case. On March 31, 2020,
the hearing examiner concluded his review of the administrative record and issued an order
transferring jurisdiction to the Board for further proceedings. The Board issued an
Ainended Final Order on October 8, 2020, placing Ibsen's license on probationary status
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for 180 days. On November 4, 2020, Ibsen filed an emergency rnotion to stay the Board's
Order. The District Court granted the stay on November 5, 2020.
On December 11, 2020, the Board filed a rnotion to disrniss Ibsen's mandamus
action and to lift the stay, asserting that the Board already had taken the action that Ibsen's
mandamus motion sought to compel. The District Court heard oral argurnent on
December 18, 2020. On January 4, 2021, it denied Ibsen's mandamus motion as
"inappropriate because it seeks to undo action already taken by the Board." Noting that
the denial of a writ of mandamus is appealable to this Court, the District Court left the stay
of the Board's Order in place for thirty days "to perrnit Ibsen to pursue any additional relief
that he believes to be appropriate." The District Court entered judgrnent on January 12,
2021. The Board gave Ibsen notice of entry of judgment on January 14, 2021. Ibsen did
not appeal.
¶6 Ibsen filed a petition for judicial review of the Board's Order two weeks later. On
March 10, 2021, the District Court dismissed the petition with prejudice. It held that
Ibsen's petition was untimely and that neither the rnandarnus action nor the order to stay
tolled the time for its filing. The District Court rejected Ibsen's argument for equitable
tolling because Ibsen failed to make a reasonable effort to pursue his legal rights when he
chose to forego judicial review in lieu of a mandamus motion. "To permit equitable tolling
in this instance," the District Court explained, "would be to extend the doctrine to
`garden variety claim[s] of excusable neglect.' " See Weidow v. Uninsured Ernp'rs' Fund,
2010 MT 292, ¶ 28,
359 Mont. 77,
246 P.3d 704.
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¶7 On appeal, Ibsen argues that his petition for review was tiinely because he filed it
within the thirty-day period of the District Court's January stay order, which the court
granted to allow Ibsen to "pursue any additional relief that he believe[d] to be appropriate."
The Board contends that Ibsen's petition for review was correctly denied because Ibsen
failed to satisfy equitable tolling requirements or otherwise explain his "inexplicable"
decision to not pursue judicial review within thirty days of the Board's October 2020
decision.
¶8 We review de novo whether the factual circumstances warrant the grant of an
equitable exception to a statutory filing deadline. Brilz v. Metro. Gen. Ins. Co.,
2012 MT 184, ¶ 13,
366 Mont. 78,
285 P.3d 494 (citing BNSF Ry. Co. v. Cringle,
2012 MT 143, ¶ 16,
365 Mont. 304,
281 P.3d 203).
¶9 Under § 2-4-702(1)(a), MCA, a person who is aggrieved by a final written decision
in a contested case is entitled to judicial review of the agency's decision. The person must
file a petition for review in the district court within thirty days after service of the final
written decision of the agency. Section 2-4-702(2)(a), MCA. Failure to file a timely
petition warrants dismissal of the petition. See Shoemaker v. Denke,
2004 MT 11, ¶ 32,
319 Mont. 238,
84 P.3d 4.
¶10 We have einphasized " ' the importance of applying procedural bars regularly and
consistently.' " Cringle, ¶ 21 (quoting Weidow, ¶ 28). Procedural tiine bars, such as the
thirty-day filing deadline in § 2-4-702(1)(a), MCA, nonetheless are subject to constitutional
review and equitable principles. Cringle, ¶¶ 18, 21. We observed in Cringle that, although
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"equitable principles will in some cases excuse strict cornpliance with a categorical time
bar, 'good cause' for such relief necessarily requires a 'legally sufficient reason.' "
Cringle, ¶ 21 (quoting City of Helena v. Roan, 2010 MT 29, ¶ 13,
355 Mont. 172,
226 P.3d 601).
A statute of limitations may be tolled when a plaintiff reasonably and in good
faith pursues one of several possible legal remedies and rneets three
criteria: (1) timely notice to the defendant within the applicable statute of
lirnitations in filing the first claim; (2) lack of prejudice to the defendant in
gathering evidence to defend against the second claim; and (3) good faith and
reasonable conduct by the plaintiff in filing the second claim.
Lozeau v. GEICO Indem. Co., 2009 MT 136, ¶ 14,
350 Mont. 320,
207 P.3d 316.
¶11 The District Court held these principles inapplicable to Ibsen's claims, and we find
no fault with its legal analysis. When it denied Ibsen's mandamus petition on January 4,
the court rightly observed that "Ibsen's complaint is no longer whether the Board acted,
but rather how the Board acted," which is not a proper subject for mandamus.
See Boehm v. Park Cty.,
2018 MT 165, ¶ 13,
392 Mont. 72,
421 P.3d 789 ("[M]andarnus
is not available to cause the respondent to undo action already taken, or to correct or revise
such action, however erroneous it may have been.") (quotation omitted); Beasley v.
Flathead Cly. Bd. of Adjustments, 2009 MT 120, ¶ 18,
350 Mont. 171,
205 P.3d 812
("A writ of mandate cannot be used to compel a discretionary act.") (citation omitted). The
District Court remarked that Ibsen had an obvious adequate and speedy remedy: a petition
for judicial review. "That Ibsen has failed to avail himself of that remedy does not mean
it was unavailable to him." When it denied mandamus, the court allowed the stay to rernain
in effect for thirty days to give Ibsen the opportunity for appeal. This did nothing to toll
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the limitation period for Ibsen's petition. The District Court's stay on the execution of the
final order pending the mandamus proceeding did not alter its status as a final order for
purposes of seeking judicial review. See B.Y.O.B., Inc. v. State, 2021 MT 191, ¶ 19,
405 Mont. 88,
493 P.3d 318 (district court orders staying final agency order terminating
alcoholic beverage franchise agreement did not affect its status as a final decision of the
agency). Instead, Ibsen could have sought a stay under § 2-4-703(3), MCA, upon the filing
of his judicial review petition.
¶12 Consistent and regular application of a statutory time bar is particularly warranted
when—like the Montana Administrative Procedure Act's (MAPA)—it is not qualified by
a good cause or excusable neglect standard. In such cases, the party must demonstrate a
"reasonable effort to pursue one's legal rights." Cringle, ¶ 21. See also Billings Yellow
Cab, LLC v. State of Montana,
2014 MT 275, TT 13-14,
376 Mont. 463,
335 P.3d 1223
(citing Cringle and applying MAPA's thirty-day limitations period because petitioner did
not demonstrate a "legally sufficient reason" for filing a second adrninistrative application
instead of seeking judicial review of the first denial). As the District Court reasoned,
mandamus plainly was not one of several "possible remed[iesj" for Ibsen's challenge to
the Board's decision. There is but a single avenue to challenge the final decision of an
administrative agency: a petition for judicial review. Section 2-4-702(1), MCA. The
District Court described Ibsen's failure to file such a petition as "inexplicable." Ibsen's
choice is sirnilar to the petitioner's in Billings Yellow Cab and in contrast to the
circumstances under which we have permitted equitable tolling of a categorical time bar.
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See, e.g., Lozeau, ¶¶ 17-18 (applying equitable tolling for action reasonably filed in tribal
court against tribal mernber); Weidow, ¶ 30 (applying equitable tolling for a nine-day filing
delay after concluding that the controlling statute was ambiguous as to what constituted
the final "determination by the department"); Schoof v. Nesbit, 2014 MT 6, ¶ 38,
373 Mont. 226,
316 P.3d 831 (applying equitable tolling where facts giving rise to open
meeting violation were allegedly concealed, "coupled with the overriding constitutional
importance of transparency in local government").
¶13 Contrary to Ibsen's argument, there was nothing in the District Court's mandamus
order or in its continuation of the stay that led him to sleep on his rights for seeking judicial
review. MAPA's statutory tirne bar should not lightly be ignored, and Ibsen cannot
establish that his mandamus motion was one of several possible legal remedies or that he
had a legally sufficient reason for failing timely to pursue judicial review.
¶14 Ibsen also asserts that the Board's failure to issue its Order within 90 days of the
second hearing exarniner's decision, as required by § 2-4-623, MCA, rendered the Order
"void and unenforceable." Ibsen cites no authority or substantive analysis in support of
this assertion. This Court has repeatedly held that it is not our function "to conduct legal
research on a party's behalf or to develop a legal analysis to support the party's position."
Cmty. Ass 'n for N. Shore Conserv., Inc. v. Flathead Cty.,
2019 MT 147, 1124,
396 Mont. 194,
445 P.3d 1195 (citing Johansen v. Dep't of Nat. Res. & Conserv.,
1998 MT 51, ¶ 24,
288 Mont. 39,
955 P.2d 653). We decline to consider this argument.
Ibsen raises several additional contentions, and we have considered them. Having
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reviewed the District Court's reasoned Order and the parties' argurnents on appeal, we find
no error in the court's rulings.
¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first irnpression, and does not establish new precedent
or rnodify existing precedent. The District Court did not err when it dismissed with
prejudice Ibsen's petition for judicial review as untimely. We affirm the court's
March 10, 2021 Memorandum and Order on Motions.
Justice/
We Concur:
Chief Justice
Justices
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Justice James Jeremiah Shea, dissenting.
¶16 I dissent from the Court's Opinion. On the facts of this case, I would hold that the
District Court erred in declining to apply equitable tolling to allow consideration of Ibsen's
petition for judicial review.
¶17 In limited circumstances, equitable tolling allows an action to continue despite
noncompliance with statutory filing deadlines. Schoof, ¶ 33. This Court has previously
held that the statute of limitations may be tolled when a plaintiff reasonably and in good
faith pursues one of several possible legal remedies and the plaintiff: (1) provides timely
notice to the defendant within the applicable statute of limitations in filing the first claim;
(2) shows there was no prejudice to the defendant in gathering evidence to defend against
the second claim; and (3) demonstrates good faith and reasonable conduct in filing the
second clairn. Lozeau, ¶ 14. We have also held that while this three-part test is appropriate
"in cases involving alternate legal rernedies, the rationale behind the doctrine of equitable
tolling serves broader purposes than rnerely those ernbodied by this test. The policy behind
the doctrine of equitable tolling is . . . to avoid forfeitures and allow good faith litigants
their day in court." School; ¶ 34 (internal quotations omitted). Put simply, a plaintiff
should not be deprived of his or her claims "when such an approach would serve no policy
purpose." Weidow, ¶ 28.
¶18 Applying the equitable tolling criteria and the broader rationale for the equitable
tolling doctrine to the facts of this case leads me to conclude that the 30-day time limit
should be equitably tolled. First, there is no question that the Board was notified timely
within the statute of limitations that Ibsen was challenging its Order because, within that
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time frame, Ibsen sought and obtained an order from the District Court staying enforcement
of the Board's Order. Second, the Board does not contend that its ability to gather evidence
in defense of its Order was prejudiced, nor does such a contention find support in the
record. Third, Ibsen reasonably and in good faith filed his petition for judicial review upon
being advised that the District Court was lifting the stay.
¶19 The District Court declined to apply equitable tolling to permit Ibsen's untimely
petition for judicial review because it determined, as a threshold rnatter, that Ibsen's
decision to pursue the writ of rnandamus was unreasonable as it was "foreclosed by
black-letter law." That rnay have been true in the final analysis, but it does not alter the
fact that while pursuing his ultimately unsuccessful petition for mandamus, the Board's
Order was stayed and the stay remained in effect until resolution of Ibsen's mandamus
petition, at which point Ibsen prornptly petitioned for judicial review of the Board's Order.
As the District Court correctly noted, its order staying enforcement "prevented the Board's
Amended Final Order from taking effect." Ibsen petitioned for judicial review within
30 days of the Order "taking effect." The circumstances of this case do not present a
"garden variety claim of excusable neglect," nor is any policy purpose served by denying
Ibsen judicial review of the Board's Order. Weidow, ¶ 28.
¶20 Considering, as the District Court described, the "long and nettlesome procedural
history" surrounding this case, I would apply equitable tolling to Ibsen's petition for
judicial review and give Ibsen his day in court.
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Justice Ingrid Gustafson joins in the Dissent of Justice Shea.
Justi
