                                 NO.    91-218

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1992



FRANK BRISENDINE, L.D., d/b/a ROCKY
MOUNTAIN DENTURE CLINIC,
                           Plaintiff and Appellant,
           -vs-
THE STATE OF MONTANA, DEPARTMENT OF
COMMERCE, BOARD OF DENTISTRY,
                           Defendant and Respondent.



APPEAL FROM:        District Court of the First Judicial District,
                    In and for the County of Lewis & Clark,
                    The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                    James C. Bartlett;        Hash,   O'Brien   &   Bartlett,
                    Kalispell, Montana

           For Respondent:
                    Robert P. herdon, Dept. of Commerce, Helena, Montana


                                 Submitted on Briefs:     November 14, 1991
          MA Y 21 1992
                                                  ..
                                                 Decided: May 21, 1992
                                                  1


Filed:
     CLERK OF SV:"SS?,
         STATE   OF Mol%
Justice William E. Hunt, Sr., delivered the opinion of the Court.
    Appellant Frank Brisendine, a licensed denturist, appeals from
an order of the First Judicial District Court, Lewis and ClarR
County, dismissing appellant's complaint          for declaratory and
injunctive relief.   We affirm.
     We rephrase the issues before the Court as follows:
     1.    Whether   the   District    Court   erred    in   dismissing
appellant's complaint for declaratory judgment for lack of a
justiciable controversy.
     2.    Whether   the   District    Court   erred    in   dismissing
appellant's complaint for declaratory judgment because he failed to
exhaust his administrative remedies.
     Brisendine is a duly licensed denturist who practices in East
Helena.    Respondent Board of Dentistry of the Department of
Commerce   (hereinafter known     as   "Board")   is   responsible   for
regulating and licensing both the practice of dentistry and
denturitry.
     On September 14, 1990, appellant presented to the Board a
proposal regarding his intent to enter into a business association
with a dentist regarding fees and compensation.        On September 20,
1990, the Board issued a letter stating that 5          37-4-103, MCA,

allows only a licensed dentist to operate and manage a dental
office, and that if appellant went ahead with his proposal he would
be illegally practicing dentistry in violation of 5 37-4-103, MCA.
The Board apprised appellant that it was still considering his

                                  2
proposal and would let him know of its intended action in about two
weeks.     The Board warned appellant not to engage in his proposed
business association prior to its decision. If appellant failed to
heed its warning, the Board threatened to revoke or suspend his
denturist license for practicing dentistry without a license in
violation of 5 37-4-103, MCA.     The record does not contain any
final decision from the Board.
     On October 30, 1990, appellant filed a complaint in District
Court    seeking a declaratory judgment and     injunctive relief.
Specifically, appellant requested the court to decide whether he
could enter into a business association with a dentist as allowed
under 5 37-29-103, MCA.
     On December 6, 1990, the Board filed a Rule 12(b) (6) motion to
dismiss for failure to state a claim for which relief can be
granted.     On February 25, 1991, the District Court granted the
motion.     The court held that at common law it was not in the
interest of the public welfare for a denturist to own and operate
a dental clinic.      State v. Boren (Wash. 1950), 219 P.2d 566,
Worlton v. Davis (Idaho 1952), 249 P.2d 810.
     Appellant timely filed a motion to amend the District Court's
order and findings.      Appellant alleged that the complaint only
stated that he had made known to the Board his intention to enter
into a lawful agreement with a dentist pursuant to 5 37-29-103,
MCA, and not whether he intended to own, operate, and manage a
dental clinic.    On April 17, 1991, the District Court amended its

                                  3
original order and held that the complaint did not present a
justiciable controversy.      The record does not reflect if the
original order was withdrawn.      Appellant appealed the decision to
this Court.


     The first issue we consider is whether the District Court
erred in dismissing appellant's complaint for declaratory judgment
for lack of a justiciable controversy.
     The purpose of the Montana           Declaratory Judgment Act       is
remedial and is meant       "to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and
other legal relations; and it is to be liberally construed and
administered."   Section 27-8-102, MCA.           Section 27-8-202, MCA,
states in pertinent part:
     Any person  . . . whose rights, status, or other legal
     relations are affected by a statute           . . .
                                                   may have
     determined any question of construction or validity
     arising under the .     . .
                               statute .          . .
                                               and obtain a
     declaration of rights, status, or other legal relations
     thereunder.
     There are two principles this Court has adopted regarding
declaratory judgments.     First, even though all of the necessary
elements of jurisdiction exist, the district court is not required
to exercise that jurisdiction. Empire Fire         &   Marine Insurance Co.
v. Goodman    (1966), 147 Mont.         396,   401, 412 P.2d     569,   571.

Secondly, a motion to dismiss a declaratory judgment rests with the
sound discretion of the district court.         Emvire Fire, 412 P.2d at


                                    4
571.    We will not disturb a district court's decision that a
declaratory judgment is not proper absent an abuse of discretion.
Emvire Fire, 412 P.2d at 571.
       The Board contends that two arguments should bar appellant
from declaratory relief.    Because appellant has not suffered from
any actual harm to his license, no justiciable controversy exists.
In addition, appellant has not exhausted all of his administrative
remedies.
       Previously, we have held that a justiciable controversy
contains three elements:
            "First, a justiciable controversy requires
            that parties have existing and genuine, as
            distinguished from theoretical, rights or
            interest. Second, the controversy must be one
            upon which the judgment of the court may
            effectively operate, as distinguished from a
            debate or      argument invoking a purely
            political, administrative, philosophical or
            academic conclusion. Third, [it] must be a
            controversy the judicial determination of
            which will have the effect of a final judgment
            in law or decree in equity upon the rights,
            status or legal relationships of one or more
            of the real parties in interest, or lacking
            these qualities be of such overriding public
            moment as to constitute the legal equivalent
            of all of them.
Lee v. State (1981), 195 Mont. 1, 6, 635 P.2d         1282, 1284-85
(quoting Matter of Secret Grand Jury Inquiry (1976), 170 Mont. 354,
357, 553 P.2d 987, 990).
       on September 14, appellant appeared before the Board in what
apparently was an informal proceeding and presented his proposal.
Nothing in the record reflects what appellant proposed to the

                                  5
Board.     The Board seemed to believe that there were problems with
the proposal and sent the letter of September 20, 1990, while it
considered the proposal.       Essentially, the letter was advisory in
nature and was not intended to be construed as a final opinion from
which an appeal to the District Court could be initiated.
         We agree with the District Court that the complaint fails to
describe what type of business association appellant intends to
enter into with a dentist. All that the complaint mentions is that
appellant intends to enter into a business association with a
dentist and asks the District Court to determine whether or not
that is allowed.
         Appellant contends that if the District Court's decision is
upheld, he must first violate the law, then face an administrative
revocation hearing whereby his license could be suspended or
revoked.        Appellant overlooks the fact that he has another
administrative remedy available.              He could ask the Board for a
declaratory judgment pursuant to          §   2-4-501, MCA.   If the decision
is adverse, he could then appeal it to the District Court pursuant
to   §   2-4-506(4), MCA.   By using this approach, appellant would not
subject his license to revocation or suspension.
         By using the Declaratory Judgment Act in District Court at
this stage of the proceeding, appellant is attempting to seek an
advisory opinion       from the     court regarding his         rights under
§§   37-4-103    and   37-29-103,   MCA.        This would    constitute   an
unwarranted intrusion into the Board's regulatory authority granted

                                      6
under Title 37, Chapter 4, and Title 37, Chapter 29.               As we have
stated in an earlier case:
         "The courts have no jurisdiction to determine
    matters purely speculative, enter anticipatory judgments,
    declare social status, deal with theoretical problems,
    give advisory opinions, answer moot questions, adjudicate
    academic matters, provide for contingencies which may
    hereafter arise, or give abstract opinions.       (Citing
    cases.) 'The Uniform Declaratory Judgment Act does not
    license litigants to fish in judicial ponds for legal
    advice. ' I'
Montana Dept. of Natural Resources         &    Conservation v. Intake Water
Co. (1976) 171 Mont. 416, 440, 558 P.2d 1110, 1123 (quoting Little
v. Wachovia Bank   &   Trust Co., 252 N.C. 229, 113 S.E.2d 689).           As we

have stated previously, no final decision has been issued from the
Board. Appellant's legal rights and status have not been adversely
affected.     We hold that the District Court is correct that no
justiciable controversy exists at this time in the proceedings.
                                    I1

     The second issue presented to this Court is whether the
District Court erred in dismissing appellant's complaint for
declaratory     judgment     because       he     failed   to    exhaust     his
administrative remedies.
     We have held that "it is not the true purpose of the
declaratory judgment to provide a substitute for other regular
actions."     In the Matter of Dewar (1976), 169 Mont 437, 444, 548
P.2d 149, 154.     Generally, we have held that before a party can
seek declaratory relief, he must                exhaust all     administrative
remedies.   Mitchell v. Town of West Yellowstone (1988), 235 Mont.

                                       7
104,   108,   765   P.2d 7 4 5 , 747- 48.   However, the exhaustive doctrine
does not apply when constitutional issues are raised.               Mitchell,
765    P.2d   at 748.         Thus, when        a party   raises a bona   fide
constitutional claim, he has a right to resort to declaratory
judgment, rather than submitting himself to an ordinance or rule he
deems unconstitutional. Mitchell, 7 6 5 P.2d at 7 4 8 .         Our reasoning
is based upon the lack of authority in administrative agencies to
determine constitutional issues. Mitchell, 765 P.2d at 7 4 8 .            Such
decisions rest within the exclusive jurisdiction of the courts.
Mitchell, 7 6 5 P.2d at 7 4 8 .
       Appellant has not properly raised a constitutional issue in
this matter.        As we have stated above, the Board's letter does not
constitute a         final opinion and          appellant can   still   seek a
declaratory judgment from the Board without subjecting his license
to suspension or revocation.                We hold that appellant has not
exhausted his administrative remedies and that the District Court
did not abuse its discretion in dismissing appellant's complaint
for declaratory judgment.
       We affirm.




                                            8
We concur:




     Chief Justice




                     9
Justice Terry N. Trieweiler dissenting.
     I dissent from the opinion of the majority.
     The majority undermines the purpose of the Uniform Declaratory
Judgments Act which is to eliminate uncertainty from the law in an
expeditious and inexpensive fashion. As a result of the majority's
decision, the uncertainty regarding Frank Brisendine's rights will
be prolonged and he will be forced to incur unnecessary expense and
delay by seeking a meaningless declaratory judgment from the Board
of Dentistry which has already indicated its intention to deny him
the opportunity to associate in a business relationship with a
dentist.
     Section       27-8-102,   MCA,   provides        that   the   purpose   of
declaratory judgments is "to settle and to afford relief from
uncertainty and insecurity with respect to rights, status, and
other legal relations; and it is to be liberally construed and
administered.I t
     Declaratory judgments were intended to eliminate the exact
type of uncertainty that exists in this case.                In this case, the
plaintiff's legal relations are uncertain because of two statutes
which are apparently in conflict regarding his right to form a
business relationship with a dentist.
     Section 37-4-lOl(2) (b), MCA, provides that a person                    is
Itpracticingdentistry" if he "is a manager, proprietor, operator,
or conductor of a place where dental operations, oral surgery                or
dental services are performed         .   .. .   'I   However, 5 37-4-103 4),
                                      10
MCA, provides in relevant part that “[nlone of the regulations
contained in this chapter apply to a person engaged in the lawful
practice of denturitry.Il
     Title 37, Chapter 29, contains the statutes which specifically
regulate the field of denturitry. Section 37-29-103, MCA, further
confuses plaintiff‘s rights by allowing denturists to form business
associations with dentists. It states that “[a] licensed denturist
may enter into any lawful agreement with a dentist regarding fees,
compensation, and business association.1’
     In this case, plaintiff proposed to the Board of Dentistry
that he be allowed to enter into a business association with a
dentist as authorized under the statute pertaining to denturitry,
but was told that his activity would be prohibited under the
statute which pertained to the practice of dentistry.
     Brisendine has an apparent statutory right to enter into a
business association with a dentist.        However, he cannot exercise
that right because of disciplinary action threatened by the Board
for the unlicensed practice of dentistry. That disciplinary action
could result in the revocation of Brisendine’s license and subject
him to criminal prosecution for practicing dentistry without a
license under   §   31-4-327, MCA (1989).   The purpose of declaratory
judgments is to avoid such undesirable consequences.
     The majority concludes that Brisendine should have requested
a declaratory judgment from the board and then appealed that
decision if it was unfavorable.         However, Rule 5 1 , M.R.Civ.P.,
                                   11
provides that It[t]he existence of another adequate remedy does not
preclude a judgment for declaratory relief in cases where it is
appropriate."     It is true that 5 2-4-506(1) and   (3),   MCA, grants
authority to the Board of Dentistry to issue declaratory judgments.
However, subsection    (4)   of the same statute appears to authorize
filing of the petition for declaratory judgment directly in the
district court.
     In this case, the Board issued a letter stating that appellant
was prohibited from entering into his proposed business association
with a dentist, and threatened to revoke or suspend his license if
he entered into such a relationship. The Board stated that a final
decision would come in two weeks.          However, no decision was
forthcoming.      Brisendine's legal rights and interests remain
uncertain.   Requiring him to seek a declaratory judgment from the
Board, which apparently through its letter had already made a final
decision, does not serve the efficient, orderly, or inexpensive
administration of justice which should be this Court's primary
concern.
     Section 1-2-102, MCA, provides that "[wlhen a general and
particular provision are inconsistent, the latter is paramount to
the former, so a particular intent will control a general one that
is inconsistent with it."      For that reason, it is clear to me that
Brisendine's rights are established by the statute found in the
chapter regulating the profession of denturitry, and not in the
chapter regulating the profession of dentistry.       I would reverse
                                    12
this case and remand it to the District Court with instructions to
determine   whether   the   Board   of   Dentistry's   action   violated

5 37-29-103, MCA, which authorizes Brisendine to associate with a
dentist for the purpose of fees, compensation, or other business
association.




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