No. 91-402 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

ARLENE BRACKMAN, RN, License No. RN 06169; 

MARY MOUAT, RN, License No. RN 07358; 

DEBBIE RUGGLES, RN, License No. RN 17406; 

RUTH SASSER, RN, License No. RN 18738; 

VERNA VanDUYNHOVEN, RN License No. RN 18699; 

LYNN ZAVALNEY, RN License No. RN 08577; 

Petitioners and Respondents, 

BOARD OF NURSING, an Administrative Agency of the Department of 

Commerce, State of Montana, 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert J. Emmons, Emmons & Sullivan, Great Falls, 

Montana; Steven J. Shapiro, Special Assistant 

Attorney General, Helena, Montana. 

For Respondent: 

Gary L. Davis, Luxan & Murfitt, Helena, Montana. 

Submitted on briefs: November 12, 1991 

Filed: J~~ J, . ETZL! z 

CLEF<( OF SUPRESdE COUR] I Niil,YTAP:A . - 4w ' fi -I- 

~ecided: November 21, 1991 

STATE OF ww 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The Board of Nursing (Board) appeals from an order of the 

District Court for the First Judicial District, Lewis and Clark 

County, granting a stay of enforcement of the administrative order 

entered in this matter, pending judicial review. We affirm. 

Two issues raised by the Board are dispositive. They are: 

1. Must the petitioners and respondents formally apply to the 

Board for a stay of its final order before a stay may be sought in 

the District Court? 

2. Did the District Court abuse its discretion by issuing an 

order staying enforcement of the Board's order pending judicial 

review? 

The Board is charged with administrative responsibility for 

issuing, revoking, and suspending licenses of registered nurses in 

Montana. Title 37, Chapter 8, MCA. Petitioners and respondents 

are registered nurses who the Board determined violated certain 

federal statutes and Montana statutes and administrative rules 

while they were employed in the Hospice Department of St. Peter's 

Community Hospital, Inc., in Helena, Montana, duringthe years 1989 

and 1990. 

This matter was heard by a hearing examiner contracted by the 

Board on April 15 through 17, 1991. The Board met to consider the 

matter on May 8, 1991, and reconvened on May 29, 1991, after 

adjourning to review the entire record. The Board rejected the 
findings and conclusions of its hearing examiner. On June 28, 

1991, based on its review of the record, the Board issued its own 

findings of fact, conclusions of law, and a final order placing the 

nursing licenses of petitioners and respondents on probation for 

periods ranging from three to five years. On July 2, 1991, the 

petitioners and respondents petitioned for judicial review in 

District Court. Simultaneously, they moved for a stay of enforcement of the Board's final order, with supporting affidavits. 

The District Court immediately granted an ex parte temporary 

restraining order and set a show cause hearing for July 12, 1991. 

At that hearing, petitioners and respondents filed updated 

affidavits in support of their motion for a stay. After hearing 

argument, the District Court made oral findings and conclusions and 

signed an order staying enforcement of the Board's action until 

judicial review is completed. The Board appeals. 

I 

Must the petitioners and respondents formally apply to the 

Board for a stay of its final order before a stay may be sought in 

the District Court? 

This argument is based on the requirement that administrative 

remedies must be exhausted before judicial relief may be pursued. 

Section 2-4-702(1) (a), MCA. The Board argues that the District 

Court should have deferred to the expertise of the Board and 
allowed the Board to consider the motion for a stay before entering 

its own ruling on the motion. 

The Board concedes that petitioners and respondents moved for 

an order to delay the effective date of the Board's order at the 

end of the last hearing before the Board. The order later issued 

by the Board did not include such a delayed effective date or even 

refer to that request. While, technically, the Board may be 

correct that there was no formal request for a stay pending 

judicial review, we conclude that requiring a formal motion to the 

Board after it issued its final order would be elevating form over 

substance. We hold that petitioners and respondents were not 

required to again apply to the Board for a stay before they could 

make the same request to the District Court. 

I1 

Did the District Court abuse its discretion by issuing an 

order staying enforcement of the Board's order pending judicial 

review? 

A person who has exhausted all administrative remedies and who 

is aggrieved by a final decision of an administrative agency may 

petition for judicial review under §§ 2-4-701 through -711, MCA. 

Section 2-4-702(3), MCA, provides: 

Unless otherwise provided by statute, the filing of the 

petition shall not stay enforcement of the agency's 

decision. The agency may grant or the reviewins court 

may order a stay upon terms which it considers proper, 
following notice to the affected parties and an opportunity for hearing. [Emphasis supplied.] 

The Board argues that this Court should adopt the standards 

set forth in Virginia Petroleum Job. Assvn v. Federal Power Comrn'n 

(D.C. Cir. 1958), 259 F.2d 921, to guide a district court's 

exercise of discretion under 5 2-4-702 (3) , MCA. The petitioners 

and respondents argue that the standards governing the issuance of 

preliminary injunctions, set forth at 5 27-19-201, MCA, apply, and 

that they have been met. The Board points out, however, that under 

5 27-19-303(2) (b) , MCA, an injunction may not be based upon 

affidavits "upon information and belief." The Board argues that 

the first set of affidavits filed by petitioners and respondents 

addressed what they believed the Board's final order would contain, 

and thus were I1upon information and belief." 

Standards for judicial review of certain aspects of administrative decisions are specifically set forth under 5 2-4-704, MCA, 

but the consideration of a motion for stay pending judicial review 

is not one of the areas listed there. No authority is cited for 

the idea that the standards for issuing preliminary injunctions 

apply. The legislature has not seen fit to limit the discretion of 

the district courts in deciding motions for stays under 5 2-4- 

702(3), MCA. We decline to adopt the suggested restrictions upon 

the discretion of district courts in deciding such motions. 
In deciding the motion for a stay, the District Court had 

before it the petition for judicial review; two sets of affidavits 

of each of the petitioners and respondents; and the findings, 

conclusions, and order of the Board. The court also heard the 

arguments of counsel. Near the end of the hearing on the motion 

for a stay, the District Court stated: 

[I]t is my inclination to extend the stay unless -- 

unless there is a danger that the nurses are going to 

commit the same conduct that is specifically addressed in 

the board's order, the findings of fact and conclusions 

of law, and it is my feeling that because of the public 

scrutiny that everybody is under now with respect to this 

particular case, that it is highly unlikely that the 

nurses are going to engage in the conduct that is the 

specific issue that is specifically addressed by this 

Board's order. 

The court then asked if counsel for the Board had anything to 

support the argument that there was a genuine danger that the 

nurses would continue with the same conduct that was addressed in 

the Board's order. The Board presented no argument on that aspect. 

We hold that it has not been shown that the District Court abused 

its discretion in issuing the stay pending judicial review. 

The Court stresses that this matter is before us on procedural 

issues only. Although it is not raised as an issue, because of our 

ruling that the statutes on injunctions do not apply, technically 

no appealable order has been entered. The merits of the case are 

not now before this Court, nor have they yet been considered by the 

District Court. Review of the record on its merits will take place 
in further proceedings, as part of the judicial review to which 

petitioners and respondents are entitled. 

The order granting a stay of execution of the Board's order 

pending judicial review is affirmed. 

We concur: