State v. Bridwell

• Decision Date: 20 March 1979
• Docket Number: No. 51138,51138
• Citation: 592 P.2d 520,1979 OK 37
• Parties: The STATE of Oklahoma, Appellee, v. Malcolm Edward BRIDWELL, M. D., Appellant.
• Court: Oklahoma Supreme Court

Page 520

592 P.2d 520

The STATE of Oklahoma, Appellee, v. Malcolm Edward BRIDWELL, M. D., Appellant.

No. 51138.

Supreme Court of Oklahoma.

March 20, 1979.

Appeal from the State Board of Medical Examiners.

Appellant appeals the revocation of his license to practice medicine by the State Board of Medical Examiners following a jury trial in which he was found guilty of violating the narcotic laws of the United States. AFFIRMED IN PART, REVERSED IN PART.

Larry Derryberry, Atty. Gen. of Oklahoma, and Karen Kay Kennedy, Asst. Atty. Gen., for appellee.

D. C. Thomas and C. Merle Gile, Oklahoma City, for appellant.

HODGES, Justice.

This is an appeal by Malcolm Edward Bridwell, M.D., appellant, from the license revocation order entered by the State Board of Medical Examiners. The order revoking the appellant's medical license was based on a finding that appellant was guilty of unprofessional conduct pursuant to 59 O.S.Supp.1973 § 509(6), (8) ¹ because he was found guilty by a federal court jury of having violated the narcotics laws of the United States of America. ²

I

The appellant alleges that service of the citation and complaint was improper. The basis of appellant's allegation is premised upon 59 O.S.1971 § 504 ³ and 12 O.S.Supp.1972 § 158. Section 504 provides that all citations and summons should be served in accordance with the Oklahoma Statutes. Title 12 O.S.Supp.1972 § 158 ⁴ provides that a summons may not be served by a party to, or interested in, the action. ⁵ The appellant asserts that because Ms. Smith, Inspector for the Board of Medical Examiners, initiated the complaint and then served the citation on the appellant the service was unlawful under § 158.

We agree with the appellee that the Administrative Procedures Act (APA), 75 O.S.1971 §§ 301, Et seq., controls the procedure of service in this case. The State Board of Medical Examiners meets the definition of agency under the Administrative Procedures Act. ⁶ Title 75 O.S.1971 § 314 ⁷ of the APA provides that the agency must give notice and that such notice may be by mail. It does not mandate any specific person or official to serve the notice. The APA is within the purview of 59 O.S.1971 § 504. The appellant's contention of unlawful service is rejected, and the Medical Board's decision as to this allegation of error is affirmed.

II

The appellant also alleges that his conviction is not final because: 1) the case is pending on appeal; 2) his license should not have been revoked until he had exhausted all appeals; and 3) the highest court whose decision is invoked must first uphold the decision of the trial court. The question presented is whether the term "conviction" as utilized in 59 O.S.Supp.1973 § 509(6), (8) means the conviction must be final and all appeals exhausted prior to revocation or suspension of a medical license.

The authorities construing the term "conviction" reflect a wide area of conflict. There are several jurisdictions which support the view that conviction means exhaustion of procedures for appeal. ⁸ The decision in Summerour v. Cartrett, 220 Ga. 31, 136 S.E.2d 724 (1964), held the word "conviction" meant the conviction must be final, and there can be no finality as long as the judgment is subject to being set aside. This decision revolved around a statutory provision barring persons convicted of certain crimes from holding office. A very similar fact situation was answered by this Court in Board of County Commissioners of Oklahoma County v. Litton, 315 P.2d 239, 242 (Okl.1957). The Court said:

"(A) judgment is not final in the sense that it is conclusive upon the parties until the highest court whose decision is invoked by either party upholds the decision of the trial court."

The Sixth Circuit has held that an exhaustion of procedures for appeal is necessary before an alien has been convicted of a narcotics offense under a statute providing for deportation of aliens convicted of narcotics offenses. ⁹

The conflicting decisions provide that conviction means an adjudication of guilt in the court of first instance. ¹⁰ The Oklahoma decision of Ex parte White, 28 Okl.Cr. 180, 230 P. 522 (1924), held that the term "conviction" in the Oklahoma Constitution relating to pardons and paroles means the final judgment, upon a verdict of guilty, of the trial court. The decision of Quintard v. Knoedler, 53 Conn. 485, 2 A. 752 (1885), held that a party is determined to be convicted immediately after a verdict of guilty, though there may be proceedings on appeal still pending. The State of Indiana has held there is a conviction of a crime after judgment and execution thereof so that a judge convicted of a crime may be removed, notwithstanding his appeal. ¹¹

Out of such conflicting decisions it becomes clear that the term "conviction" cannot be given a precise definition. ¹² Its meaning must be derived from the intention of the legislature as disclosed by the provisions of the statute. ¹³ It may be final for one purpose and not for another. ¹⁴

To discover the purpose and intent of the legislature we must examine the statutes. Section 503 authorizes the Medical Board to suspend or revoke a practitioner's license for unprofessional conduct and § 506 gives the Board discretion in deciding the discipline, if any. Section 509 defines unprofessional conduct. ¹⁵ Section 513 further develops the required procedures for revocation or suspension because of conviction. Section 513 defines the procedure for revocation, makes revocation or suspension mandatory, and adds a phrase that states the conviction must be final. ¹⁶

The appellee claims that § 513 represents an entirely different ground for revocation by the Medical Board. Under this view, § 513 and § 509 are unrelated except as two separate grounds for revocation. This means that the Board has two choices when a physician is convicted of a felony: (1) Bring revocation proceedings under § 503 for unprofessional conduct as defined in § 509 or, (2) Bring the proceedings under § 513 as a final conviction of a felony. Appellee contends that the present proceeding was initiated under § 503 and § 509 which thereby escapes the language in § 513 indicating the conviction must be final.

The appellant contended in the Medical Board proceeding that § 513 modifies and explains the difference in procedure when charged with § 509(6), (8) instead of the other definitions of unprofessional conduct. Title 59 O.S.1971 § 505 provides that the Board is to sit as a trial body and make decisions on the merits of the case. There was no determination on the merits by the Board in this case. Instead, the Board relied upon the criminal trial court's decision by accepting a certified copy of the judgment. The only applicable section in which the Board is given the procedure of receiving a certificate of conviction from the criminal court is § 513 which indicates an inconsistency in appellee's position. Another consideration is that if conviction of a felony or a violation of the drug laws is a ground for revocation as unprofessional conduct under § 509, what was to be the purpose of § 513 except to show the difference between "convictions" as unprofessional conduct and the other definitions of unprofessional conduct. After close scrutiny and following the rule of statutory interpretation that the statute be read as a whole ¹⁷ we find there is no other purpose.

This Court recognizes the considerable interest that both the medical profession and state have in protecting people from unprofessional and morally corrupt physicians. We also realize that the trial court conviction, at the very least, places doubt on the innocence of the appellant. The trial court conviction should certainly sustain a statutory provision, as is the rule in proceedings against legal practitioners, of suspending a physician until the outcome of the appeal. ¹⁸ However, there is no similar provision dealing with the medical profession applicable under the present cases. ¹⁹

Comparatively, we must give great consideration to the substantial interest that a physician has in practicing his profession. The license to practice a profession is at least a property interest and deserves appropriate protection. ²⁰ "The right to practice one's profession is sufficiently precious to surround it with a panoply of legal protection." ²¹

The legislature in 59 O.S.1971 § 513 apparently intended to strike a balancing point between the interests of the state's protective rights and the interest of the physician's right to practice. That balance is that a conviction must be final in the sense that all rights to appeal are exhausted before a physician's license may be revoked.

We hold that § 513 is not a separate ground for revocation but explains the procedure which must be followed by the Board when revocation is based upon conviction of a felony ²² or conviction of violating anti-narcotic or prohibition laws. ²³ The required procedure is that the Board must obtain a certified copy of the trial court's judgment and sentence and the court clerk's certificate that the conviction is final. "Final", as used in this provision, means that time at which all remedies for direct appeals are exhausted.

This Court's construction of the statute reveals that the Board has two options when proceeding against one convicted of a felony involving moral turpitude or a narcotics violation. ²⁴ First, the Board may follow the procedures under § 513 as outlined by this Court. Second, the Board may sit as an adjudicative body and determine on the merits whether the accused is guilty of any other conduct proscribed in § 509 as unprofessional. Because the hearing and possible grounds for revocation would not be based upon the accused's conviction, the Board would not have to wait until the conviction became final.

The Board failed to follow either procedure and the revocation of appellant's license was improper. The Board relied solely upon the appellant's trial court...