Board of Medical Examiners v. Cusick

• Decision Date: 19 June 1963
• Citation: 234 Or. 533,383 P.2d 69
• Parties: In the Matter of the Proceedings for the Revocation of the License of William Rogers Cusick to Practice Osteopathy and Surgery in State of Oregon. BOARD OF MEDICAL EXAMINERS, State of Oregon, Appellant, v. William Rogers CUSICK, Respondent.
• Court: Oregon Supreme Court

Page 69

383 P.2d 69

234 Or. 533

In the Matter of the Proceedings for the Revocation of the

License of William Rogers Cusick to Practice

Osteopathy and Surgery in State of Oregon.

BOARD OF MEDICAL EXAMINERS, State of Oregon, Appellant, v. William Rogers CUSICK, Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted June 7, 1963.

Decided June 19, 1963.

Arthur G. Higgs, Asst. Atty. Gen., Portland, argued the cause for appellant. With him on the brief was Robert Y. Thornton, Atty Gen., Salem.

C. X. Bollenback, Portland, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, O'CONNELL and DENECKE, JJ.

O'CONNELL, Justice.

This is an appeal by the Board of Medical Examiners from an order of the Multnomah county circuit court commanding the board to issue a license to practice osteopathy to defendant.

In 1944 the board has issued such a license to defendant. The license was revoked on February 3, 1960 for the non-payment of the annual registration fee. On April 26, 1960 defendant requested reinstatement. A similar request was made on August 3, 1960. On August 10, 1960 the board sent to defendant an application form and requested him to complete it. The board's letter informed defendant that the board would meet on October 6, 7 and 8, 1960, at which time defendant's written request for reinstatement and his completed application would be presented to the board. Defendant filed his application with the board. On October 6, 1960 he appeared before the board and requested reinstatement. By letter dated October 12, 1960 the board informed defendant that his request for reinstatement had been denied. Defendant then appealed to the circuit court.

Upon such an appeal ORS 677.210 requires the board to file with the clerk of the circuit court the following documents:

'(3) * * * (a) Copy of the complaint, notice to appear and any other documents in the nature of pleadings filed by the board.

'(b) The answer and any other documents in the nature of pleadings filed by the accused.

'(c) Appeal bond.

'(d) Transcript of testimony, exhibits and any documents in possession of the board which have any relevancy on the appeal.' ¹

The board filed the correspondence which had been exchanged between defendant and the board, the defendant's application and some other documents. The board did not file a transcript of testimony. After the board had filed these documents with the clerk, the board filed an 'Affidavit in Support of Motion to Dismiss' the appeal to the circuit court. Although the record which comes to us does not disclose the reason for the filing of the affidavit, the board's brief on the present appeal explains that the trial judge continued the original hearing 'for a reasonable time in which the Board of Medical Examiners was to furnish by affidavit further information to said court.' The affidavit recites various acts of misconduct by defendant and concludes as follows:

'In summary and conclusion the Board of Medical Examiners reviewed the application for re-instatement of Dr. William Rogers Cusick's license to practice osteopathy and surgery in the State of Oregon and took into consideration the information contained in the records and files of the Board of Medical Examiners as shown heretofore. After due and deliberate consideration of the said application and of the files and records of the Board of Medical Examiners, as shown heretofore, the Board of Medical Examiners made the following Findings * * *.'

The 'affidavit' then sets forth three findings which we have summarized in the margin. ²

It will be noted that the board did not file with the clerk of the circuit court a transcript of testimony as prescribed in ORS 677.210. It is likely that no transcript of testimony existed. There is no indication in the record that there was a hearing at which defendant was given the opportunity to present evidence to the board with respect to the matters recited in the board's affidavit. Indeed, it seems evident from the nature of the record filed by the board and from the manner in which the case is argued on appeal that the board did not deem it necessary to provide defendant with a hearing at which he could answer charges of misconduct.

The board's theory seems to be that a licentiate who fails to pay his annual registration fee within the time specified in ORS 681.110 ³ is in the same position as one who makes application for a license for the first time and that the action of the board is binding upon the court in the absence of fraud or mistake. The board's position is not entirely clear. It is argued that the board 'was thus acting as an administrative agency, not a judicial tribunal, and its findings are, in the absence of fraud or mistake, conclusive on the court.' ORS 681.152 is relied upon as the source of the board's discretionary power. That section provides as follows:

'Whenever the license of a practitioner of osteopathy and surgery is revoked or annulled for any cause, the Board of Medical Examiners may, in its discretion, after the lapse of six months from the date of such revocation or annulment, upon written application and after a hearing, restore to such former practitioner the right to practice in this state.'

It appears to be argued that under this section the board may refuse to restore a former practitioner's license after the lapse of six months from the date of the automatic revocation of the license of a delinquent licensee, in its discretion even though there may be no evidence of misconduct other than the failure of the licentiate to pay the annual registration fee. The board recognizes that the delinquent licensee is entitled to a hearing under ORS 681.152, but the nature of the inquiry which would be pursued by the board at such a hearing is not explained.

ORS 681.110(2) provides that the board may require a delinquent licensee to pay a penalty not to exceed $1 for each day he is delinquent. This section also empowers the board to impose 'any other penalties provided for by law.' ⁴

We construe ORS Chapter 681 to mean that a delinquent licensee who makes application for reinstatement after his license has been automatically revoked as provided in ORS 681.110 is entitled to reinstatement upon paying the money penalty fixed by the board unless he is guilty of misconduct as defined in ORS 681.140 ⁵ and ORS 681.170. ⁶ And he is entitled to notice and a hearing on the charge of misconduct in the latter event.

If the proper procedure is followed, the...