Montana Health Systems, Agency, Inc. v. Montana Board of Health & Environmental Sciences , 188 Mont. 188 ( 1980 )

No. 14877
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
MONTANA HEALTH SYSTEMS, AGENCY, INC.,
Petitioner,
and
MONTANA NURSING HOME ASSOC.,
Petitioner,
VS .
MONTANA BOARD OF HEALTH AND ENVIRONMENTAL
SCIENCES,
Respondent,
and
MISSOULA GENERAL HOSPITAL, a
non-profit corporation,
Intervenor.
Appeal from: District Court of the First Judicial District,
In and For the County of Lewis and Clark,
Honorable Gordon R. Bennett, Judge presiding.
Counsel of Record:
For Appellant:
Garlington, Lohn and Robinson, Missoula, Montana
For Respondent :
Datsopoulos and MacDonald, Missoula, Montana
Peter M. Meloy, Helena, Montana
Eleanor Parker, Dept. of Health, Helena, Montana
Submitted on briefs: October 25, 1980
APR 2 - 1 9 l
Decided :
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
Missoula General Hospital (herein referred to as
Hospital) appeals from an order of the Lewis and Clark
County District Court denying its motion for change of
venue. The sole issue presented is whether the trial court
properly denied the motion for change of venue from Lewis
and Clark County to Missoula County.
On December 18, 1978, the Montana Board of Health and
Environmental Sciences (herein referred to as the Board)
issued findings of fact, conclusions and an order granting
the Hospital a certificate of need, allowing the Hospital
to initiate construction of a 80 bed intermediate care nursing
home facility adjacent to the present hospital site in
Missoula, Montana. Montana Health Systems Agency, Inc.
(herein referred to as Montana Health) and the Montana Nursing
Home Association (herein referred to as Association) appeared
and opposed the issuance of the certificate of need at
the administrative hearing level. Montana Health and the
Association appealed to the Lewis and Clark County District
Court seeking judicial review of the Board's order.
On February 5, 1979, the trial court allowed the
Hospital to intervene. On March 5, 1979, the Hospital filed
a motion seeking a change of venue to Missoula County. On
April 2, 1979, the trial court entered an order denying the
motion for change of venue, determining that section 2-4-
702(2)(a), MCA, was controlling. On April 20, 1979, the
Hospital filed a motion to reconsider. On June 6, 1979, the
trial court entered a memorandum and order denying the
motion to reconsider, affirming the prior ruling that venue
should remain in Lewis and Clark County. This appeal followed.
-2-
The Hospital does not contest the procedural course
taken by Montana Health and the Association in appealing the
Board's administrative decision to grant the certificate of
need. However, the Hospital contends that as a private
litigant doing business in Missoula County, it is entitled
to a change of venue to Missoula County under section 25-2-
201, MCA, and section 25-2-105, MCA; general statutory
provisions relating to venue. The Hospital further contends
that Missoula County is the proper county for judicial
review because the certificate of need is operative only in
Missoula County, where the nursing home is to be constructed.
Montana Health and the Association contend that Lewis and
Clark County is the proper county for judicial review under
section 2-4-702, MCA, the venue provision of the Montana
Administrative Procedure Act (herein referred to as MAPA).
Section 2-4-702, MCA, is a statute providing for judicial
review of the actions of any administrative agency of the
state. Clearly, the Board is an administrative agency of
the state, and judicial review of the Board's order granting
the certificate of need is sought in the instant case.
Section 2-4-702 (2)(a) provides that " [p] roceedings for
review shall be instituted by filing a petition in district
court within thirty days after service of the final decision
of the agency . . . Except - otherwise provided
as - statute,
by
the petition shall be filed in the district court for the
county where the petitioner resides or has his principal
place of business or where the agency maintains its principal
office." (Emphasis added.) The language of section 2-4-702
(2)(a), " [elxcept as otherwise provided by statute", would
indicate that in specific instances, other statutes be
looked to in order to determine venue. State, Consumer v.
Mont. Dept. of Pub. Serv. Reg. (1979), Mont . -, 593
-3-
P.2d 34, 36, 36 St-Rep. 646, 649. To the extent of
any inconsistency a more specific statute will control
over a more general statute pertaining to the same subject
matter. State, Consumer v. Mont. Dept. of Pub. Serv. Reg.,
supra, 593 P.2d at 36, 36 St.Rep. at 649; State v. Holt
(1948), 121 Mont. 459, 194 P.2d 651.
This case involves the Board's granting of a certificate
of need, and section35-301, et seq., MCA, provides the
statutory framework relating to the issuance of certificates
of need. Section 50-5-306, MCA, specifically provides a
right to a hearing and appeal of a decision on an application
for a certificate of need,: and contains a specific provision
relating to venue. .Section 50-5-306 (4) provides that " [t]he
final decision of the Board shall be considered the decision
of the department for purposes of an appeal to district
court. Any affected person may appeal this decision to the
district court as provided in Title 2, chapter 4, part 7."
Title 2, chapter 4 p r
;at 7, is that portion of the MAPA
relating to judicial review of contested cases. It contains
section 2-4-702(2)(a), the MAPA provision relating to venue.
Section 50-5-306(4) specifically provides that the MAPA
provision relating to venue applies. Accordingly, section
2-4-702(2)(a) is the controlling statutory provision. The
trial court properly determined that venue should remain in
Lewis and Clark County.
Affirmed.
We Concur:
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v----------------------------
Justices
Mr. Justice John C . Sheehy, deeming himself disqualified,
did not participate.