Barnes v. State ex rel. Ferguson, 1 Div. 23

• Decision Date: 28 February 1963
• Docket Number: 1 Div. 23
• Citation: 274 Ala. 705,151 So.2d 619
• Parties: J. Mack BARNES et al. v. STATE of Alabama ex rel. James S. FERGUSON.
• Court: Alabama Supreme Court

Page 619

151 So.2d 619

274 Ala. 705

J. Mack BARNES et al. v. STATE of Alabama ex rel. James S. FERGUSON.

1 Div. 23.

Supreme Court of Alabama.

Feb. 28, 1963.

Rehearing Denied April 11, 1963.

MacDonald Gallion, Atty. Gen., Bernard F. Sykes, Asst. Atty. Gen., and John P. Kohn, Montgomery, for appellants.

Pierre Pelham, Mobile, for appellee.

Hugh Maddox, Montgomery, amicus curiae.

SIMPSON, Justice.

Appeal by the State Board of Medical Examiners from a judgment of the Circuit Court of Mobile County granting a peremptory writ of mandamus directed to the Board commanding it to issue Dr. James S. Ferguson a Certificate of Qualification to practice medicine, under the reciprocity statute, § 267, Title 46, Code of Ala.1940, as amended.

This case has a strong emotional appeal for an affirmance of the judgment below, because the good people of Coffeeville seem almost unanimous in their desire to have their doctor accredited to practice his profession in that community. Nevertheless, there are certain legal principles which govern this case and all others like it and we perforce must be so governed in our decision. We are frank to say that if we were to act on the case as a de novo proceeding we might not reach the same conclusions as did the Board. But we do not so sit, nor should the learned trial court have so viewed the proceeding before him. His court, like this Court, sits in such cases as a reviewing court and is governed by the principles we shall hereafter advert to.

Appellee was duly licensed to practice medicine by the State of California. Upon having disputes with other staff members over treatment of patients and difficulties with nurses over the care of his patients, he was excluded from the use of Palo Verde Hospital facilities. He then set up and operated his own clinic for about fourteen months in Blythe, California. Then after having serious marital vicissitudes, he left California, taking with him his six children, and went to Mexico. There appellee allegedly divorced his wife, married one Sally Perez, a former employee, later divorcing her and then remarrying her.

In September, 1958, appellee came to Coffeeville, Clarke County, Alabama, and engaged in the practice of medicine under an arrangement with another doctor. In December, 1958, he applied for reciprocity to the Alabama Board of Medical Examiners, which was denied after due deliberation and he was ordered to cease and desist further practice of medicine. When appellee was present before the Board on this occasion, appellee answered that it was 'none of their business' when asked about his former background in California. The Board on ten other occasions considered the application and each time denied a reciprocity certificate.

The Board had before it voluminous evidence--almost all favorable from former patients in Blythe and laymen in Coffeeville--but almost all unfavorable from other physicians in Clarke County and in California. The unfavorable evidence in the form of documents, memoranda, personal correspondence, tended to show that appellee was considered a mental case, and that kidnapping charges had been lodged against him in California and florida for the taking of his children without authority. Lay testimony at the trial was favorable to appellee's licensure, but they admitted a lack of qualification to pass on the professional proficiency, and mental and emotional stability of appellee. The reports to the Board from the California doctors stated in substance that Dr. Ferguson was a mental case, a psychopath, not gifted with insight due to a considerable quantity of narcissism and immaturity, and that he had performed major surgery in his unlicensed clinic. The Board had evidence of a contempt order against appellee showing that he had 'cussed out' a judge and struck a bailiff in a courtroom in California.

After the first hearing before the Board it recommended that appellee have a psychiatric examination by Dr. Tarwater, head psychiatrist of the Alabama Mental Hospital. Dr. Tarwater's first report, and also the report of a psychologist, were unfavorable to appellee's licensure. A second examination was subsequently conducted which tended to show that appellee was mentally and emotionally competent to practice medicine. Then a third report was sent to the Board by Dr. Tarwater which stated in effect that the second report and the first report should be considered together, the second not contradictive of the first. Any further examination into the evidence concerning appellee's mental and emotional background would serve no useful purpose. Suffice it to say that there was substantial evidence upon which the Board could predicate a refusal of licensure.

The trial court entered a finding that appellee was morally fit, and mentally and emotionally competent to engage in the practice of medicine; and that the Board arbitrarily withheld the issuance of the Certificate of Qualification. The trial court in ordering the peremptory writ of mandamus put great stress on a violation of appellee's rights under the Fourteenth Amendment, in particular that appellee was denied due process in the Board's denial of licensure. Quoting from the decree:

'The court finds no substantial evidence that there was ever a hearing conducted by The Board which anywhere nearly meets the minimum requirements of 'due process'. The evidence relied upon by The Board was in the main hearsay, or otherwise incompetent, illegal or not relevant.'

The paramount questions on this appeal are whether appellee had a right which was subject to the protection of the due process clause, and if so, was appellee denied due process by the Board? Numberous other points have been raised by the parties and will be treated by the Court.

Appellant contends that appellee had no 'property right' to engage in the practice of medicine in Alabama until all reasonable requirements set by the Board are met. We find authority to the contrary. In State ex rel. Dally v. Woodall, 225 Ala. 178, 142 So. 838, the Court, speaking through Justice Thomas, stated:

'The right to follow lawful employment of any ordinary and harmless calling, and that of entering the professions duly and reasonably regulated under the police power, are of constitutional guaranty that may not be abridged, and are property rights that may not be arbitrarily denied without due process of law, and as to which the equal protection of the law may not be denied or withheld.' (Emphasis added.)

It therefore appears that under the above stated principle the appellee did have a property right subject to the protection of the 'due process clause.'

Appellant submits that we should follow the case of State ex rel. D. Elleen B. McAvoy, M. D. v. Louisiana State Board of Medical Examiners, 238 La. 502, 115 So.2d 833, which held that there is no property right to practice medicine in one state merely because of licensure in a sister state, and there being no property right there would be no occasion to observe due process and give an applicant a contradictory hearing. We are greatly impressed with the reasoning of that decision, and would be tempted to follow it, as it is practically identical factually, but being bound by the concept of stare decisis, we must adhere to the Woodall decision.

Having determined that appellee has a property right subject to the protection of the 'due process clause', we turn to a consideration of whether appellee was denied due process by the Board. It appeared in evidence without dispute that appellee was before the Board on Two occasions, having had a reasonable notice beforehand. At his first hearing, December 17, 1958, he was very uncooperative with the Board concerning his past conduct. Appellee met with the Board for about an hour on that occasion. Appellee then appeared before the Board on September 23, 1959, and was present before the Board for about twenty minutes.

In Evans v. Evans, 200 Ala. 329, 76 So. 95, our Court construed due process as follows:

'For due process of law means notice, a hearing according to that notice, and a judgment entered in accordance to that notice and that hearing. That is to say, the Fourteenth Amendment to the federal Constitution guarantees that the defendant shall be given that character of notice and opportunity to be heard which is essentially due process of law. It has been held that when this is done, the requirements of the Constitution are met, and that it is not for the Supreme Court of the United States to determine whether there has been an erroneous construction of statute or common law by the state court.'

Then in MacMahon v. Baumhauer, 234 Ala. 482, 175 So. 299 (a case involving a property right) the Court held that the owners could not be divested of their right except by due process of law--'due notice and right to defend or maintain such right of property'. See also Bolte v. Schmale, 258 Ala. 373, 62 So.2d 797, wherein it was held a denial of due process to adjudicate rights without notice and hearing to the adversary. Thus, from these cases we derive the formula for due process of law, the elements of which are a due notice of a hearing and a hearing on the merits. The annotator aptly states the concept of due process in 16A C.J.S. Constitutional Law § 622, p. 822:

'Due process of law requires an orderly proceeding adapted to the nature of the case, in which proceeding the citizen has a right and an opportunity to be heard and to defend, protect, and enforce his right * * *.'

The record clearly reflects that appellee was accorded 'due process' in accordance with the foregoing principles. The trial court specifically stated that the bad faith of the Board was not in issue. We therefore fail to see how appellee was denied due process of law.

Moreover, it appears that appellee never requested an opportunity to present the Board with evidence of his moral qualifications nor did he ask to be allowed to examine the evidence the...