Opinion
OP 24-0377
07-02-2024
ST. JAMES HEALTHCARE, Petitioner, v. MONTANA SECOND JUDICIAL DISTRICT COURT, BUTTE-SILVER BOW COUNTY, HON. ROBERT J. WHALEN, Presiding, Respondent.
ORDER
Petitioner St. James Healthcare seeks a writ of supervisory control directing the Second Judicial District Court, Butte-Silver Bow County, to vacate its June 11, 2024 Temporary Restraining Order and Order to Show Cause in that court's Cause No. DV-23-308. St. James Healthcare alleges the District Court erred by imposing a prior restraint on constitutionally protected speech. St. James further requests this Court stay further District Court proceedings and stay enforcement of the Temporary Restraining Order (TRO) pending resolution of this petition. We took St. James' request for stay under advisement and requested responses to the petition from the District Court and from Frank Raiser, M.D., Plaintiff in the underlying District Court case. Having received those responses, we consider this matter ready for disposition.
The TRO at issue requires St. James to rescind and withdraw a report that it filed with the Montana Board of Medical Examiners; prohibits and enjoins St. James, and anyone acting in concert with St. James, from taking steps to submit another report to the Board on the basis of St. James' May 13,2024 summary suspension of Dr. Raiser's clinical privileges; and prohibits and enjoins St. James, and anyone acting in concert with St. James, from submitting a report about the suspension of Dr. Raiser's privileges to the National Practitioner Database. The court further ordered that the TRO remain in effect until a show cause hearing before that court on July 11, 2024, at 9:00 a.m. On June 17, 2024, St. James petitioned this Court for writ of supervisory control.
Supervisory control is an extraordinary remedy that may be invoked when the case involves purely legal questions and urgent or emergency factors make the normal appeal process inadequate. M. R. App. P. 14(3). The case must meet one of three additional criteria: (a) the other court is proceeding under a mistake of law and is causing a gross injustice; (b) constitutional issues of state-wide importance are involved; or (c) the other court has granted or denied a motion for substitution of a judge in a criminal case. M. R. App. P. 14(3)(a)-(c). Consistent with Rule 14(3), itis the Court's practice to refrain from exercising supervisory control when the petitioner has an adequate remedy of appeal. E.g., Buckles v. Seventh Judicial Dist. Court, No. OP 16-0517, 386 Mont. 393, 386 P.3d 545 (table) (Oct. 18, 2016); Lichte v. Mont. Eighteenth Judicial Dist. Court, No. OP 16-0482, 385 Mont. 540, 382 P.3d 868 (table) (Aug. 24, 2016). "[A] writ of supervisory control is not to be used as a means to circumvent the appeal process. Only in the most extenuating circumstances will such a writ be granted." State ex rel.' Ward v. . Schmall, 190 Mont. 1, 617 P.2d 140 (1980).
St. James argues that supervisory control is appropriate because the TRO's prior restraint causes it immediate and irreparable harm that cannot be corrected on appeal. Furthermore, St. James alleges it has no speedy remedy because it asked the District Court to hear St. James' motion to dissolve the TRO "as quickly as possible ... [b]ut the District Court will not hear the motion until July 11, 2024." Relying on § 27-19-319, MCA, St. James asserts that this is not "as expeditious[] as the ends of justice require."
St. James further argues that this matter is appropriate for supervisory control because the question of whether St. James' speech is constitutionally protected is a question of law and, by restraining St. James' constitutional right to free speech, the TRO is causing a gross injustice.
Both Dr. Raiser and the District Court, responding in opposition to St. James' petition, assert that St. James attempts to mislead this Court by failing to provide this Court with sufficient context. The District Court explains that this is not the first TRO it issued in this case: it entered a Temporary Restraining Order and Order to Show Cause, enjoining and restraining St. James from disseminating peer review matters and proceedings concerning Dr. Raiser on November 29, 2023. On December 21, 2023, it orally granted Dr. Raiser's application for a preliminary injunction after holding a hearing on whether to dissolve the TRO or issue a preliminary injunction.
The District Court filed its written findings and order on the preliminary injunction on March 19, 2024. It explains that its ruling intended to preserve the status quo pending trial. However, on May 3, 2024, Dr. Raiser then requested an injunction under M. R. Civ. P. 62(c), because he alleged that St. James continued to violate the peer review process.
On May 13, 2024, St. James summarily suspended Dr. Raiser's clinical privileges and reported the suspension to the Montana Board of Medical Examiners. Dr. Raiser then filed a request for an additional TRO on June 7, 2024. The District Court held an emergency hearing on that request on June 10, 2024, resulting in the order at issue here.
Regarding the June 11, 2024 Order, the court explains that, based upon the statutes and the emergent need to have the evidentiary hearing as soon as possible, it offered the parties a hearing date of July 1, 2024, but St. James' counsel was unavailable.
In his response to St. James' petition before this Court, Dr. Raiser argues that St. James' own conduct demonstrates that there is no urgency or emergency as St. James rejected the District Court's offer of a July 1 hearing. Furthermore, both Dr. Raiser and the District Court assert that St. James never argued in that court that its speech was constitutionally protected, but raises that argument for the first time in the present petition.
Both Dr. Raiser and the District Court further argue that this matter is not, appropriate for supervisory control because fact-finding is necessary to determine whether continued protections are warranted.
Having considered the responses of Dr. Raiser and the District Court, we conclude St. James has failed to demonstrate that it meets the criteria required under M. R. App. P. 14(3) to support supervisory control. First, St. James has failed to demonstrate urgency, as its own actions delayed an expedient hearing in the District Court. Section 27-19-319, MCA, provides that if a party adverse to a restraining order timely moves that the order be dissolved, "[t]he court shall hear and determine such motion as expeditiously as the ends of justice require." In Kennedy v. Mont. First Jud. Dist. Ct., No. OP 21-0545, 407 Mont. 440, 500 P.3d 579 (Nov. 9, 2021), we denied supervisory control where a court attempted to hold a show cause hearing within the statutory timeframe but reset the hearing outside of that timeframe due to the unavailability of counsel on, presumably, the earliest available date. Similarly here, we will not fault the District Court where it offered an expedient hearing date that was declined by counsel for the moving party.
Furthermore, as both Dr. Raiser and the District Court assert, the question of whether to continue the protections of the TRO require factual inquiry. Questions of fact are not susceptible to review on supervisory control. Alford v. Mont. Fifteenth Jud. Dist. Ct., Flo. OP 22-0204, 409 Mont. 555, 512 P.3d 1173 (May 3, 2022) (supervisory control is proper only in the Court's discretion and upon affirmative showing that the lower court is proceeding under a manifest mistake of law involving purely legal questions not dependent on disputed material facts); Barrus v. Mont. First Jud. Dist. Ct., 2020 MT 14, ¶¶ 17-20, Mont. 353,456 P.3d 577 (supervisory control unavailable if matter does not involve purely legal questions). In this case, as the District Court explains in its response, the necessary facts need to be developed in further proceedings in that court.
The burden of persuasion is on the petitioner to convince this Court to issue a writ. . Westphal v. Mont. Eleventh Jud. Dist. Ct., No. OP 21-0387, 405 Mont. 438, 495 P.3d 421 (Aug. 17, 2021). In this case, we conclude that St. James has failed to demonstrate that the normal appeal process is inadequate in this instance and has offered ho compelling argument as to why this Court should assume supervisory control in this matter.
IT IS THEREFORE ORDERED that the Petition for a Writ of Supervisory Control is DENIED and DISMISSED.
The Clerk is directed to provide immediate notice of this Order to counsel for Petitioner, all counsel of record in the Second Judicial District Court, Butte-Silver Bow County, Cause No. DV-23-308, and the Honorable Robert J. Whelan, presiding.