Copeland v. Kansas State Bd. of Examiners in Optometry

• Decision Date: 26 January 1974
• Docket Number: No. 47100,47100
• Citation: 213 Kan. 741,518 P.2d 377
• Parties: In the Matter of Victor L. Copeland, Victor L. COPELAND, Appellant, v. KANSAS STATE BOARD OF EXAMINERS IN OPTOMETRY, Appellee, and Committee on Grievance, Kansas Optometric Association, Appellee.
• Court: Kansas Supreme Court

Page 377

518 P.2d 377

213 Kan. 741

In the Matter of Victor L. Copeland,

Victor L. COPELAND, Appellant, v. KANSAS STATE BOARD OF EXAMINERS IN OPTOMETRY, Appellee, and Committee on Grievance, Kansas Optometric Association, Appellee.

No. 47100.

Supreme Court of Kansas.

Jan. 26, 1974.

Syllabus by the Court

In an appeal reviewing the action of a district court sustaining the findings and conclusions of the Kansas State Board of Examiners in Optometry resulting in the revocation of the license of Victor L Copeland to practice optometry in this state, the record is examined and it is held: (1) Appellant is not entitled to a trial de novo in the district court; (2) the procedure and conduct of the hearing was not arbitrary, capricious or unreasonable; (3) the findings and conclusions of the Board were supported by substantial competent evidence; and (4) the appellant was not denied due process.

Don. C. Smith of Mitchell, Smith & Patton, Dodge City, argued the cause, and John A. Bausch, Topeka, was with him on the brief for appellant.

Larry L. Luttjohann, Topeka, argued the cause and was on the brief for appellee, Kan. State Bd. of Examiners in Optometry.

Glenn J. Shanahan of Bryant, Cundiff & Shanahan, Wichita, was on the brief for appellee, Committee on Grievance, Kan. Optometric Ass'n.

OWSLEY, Justice:

The trial court, pursuant to appeal under K.S.A. 60-2101(a), sustained an order of the Kansas State Board of Examiners in Optometry revoking the certificate and license of Dr. Victor L. Copeland to practice optometry in the State of Kansas. The trial court's journal entry of judgment stated:

'The Court further finds that appellate review by the District Court under the provisions of K.S.A. 60-2101(a) is restricted to considering from the record whether, as a matter of law, the administrative tribunal, being, in this case, the Kansas State Board of Examiners in Optometry, acted fraudulently, arbitrarily, or capriciously; and whether the order made by said Board is substantially supported by evidence; and further whether said Board acted within the scope of its authority. The Court further finds that under the provisions of K.S.A. 74-1501 to 74-1504, inclusive, and amendments thereto, the examining, licensing and revoking of the license to practice optometry is vested in the Kansas State Board of Examiners in Optometry, and that the Kansas State Board of Examiners in Optometry has been and is classified as an administrative body.

'The Court further finds from the record and the findings of fact and conclusions of the Board that the Court cannot say or find as a matter of law that there was arbitrary, capricious, or unlawful action taken by said Board. The Court further finds that it cannot say or find that the findings and conclusions by the Kansas State Board of Examiners in Optometry are not supported by substantial evidence. The Court further finds that judgment should be entered in favor of the Kansas State Board of Examiners in Optometry and complainants and against the appellant, Dr. Victor L. Copeland. The Court further finds that its order of May 14, 1970, restraining the Board from forfeiting the certificate of registration and license of Dr. Victor L. Copeland to practice optometry pending the final hearing of this appeal and cause should be dissolved and set aside.'

On appeal to this court, Copeland attacks the trial court's judgment on four grounds; namely:

I. The trial court erred in its construction of K.S.A. 60-2101.

II. The trial court's judgment was arbitrary, capricious and unreasonable.

III. The trial court erred in finding the order revoking the license was supported by substantial competent evidence.

IV. The trial court erred in finding the Board did not deny the appellant due process in the hearing procedure.

In support of Point I, Copeland claims a proper construction of K.S.A. 60-2101(a) permits a trial de novo in the district court. He contends the statute was intended to be quite broad as opposed to specific appeal statutes such as K.S.A. 65- 2848 (State Board of Healing Arts), K.S.A. 66-118c (Corporation Commission), K.S.A. 65-1121 (State Board of Health), K.S.A. 65-1628 (State Board of Pharmacy), K.S.A. 65-1450 (State Board of Dental Examiners), and K.S.A. 65-504 (State Board of Health). He further argues that our decisions in Lauber v. Firemen's Relief Association, 202 Kan. 564, 451 P.2d 488, and Neeley v. Board of Trustees, Policemen's & Firemen's Retirement System, 205 Kan. 780, 473 P.2d 72, limiting the scope of appellate review of administrative orders on appeal to the district court, are erroneous in that we failed to give effect to that part of 60-2101(a) which provides the district court shall 'enter such order as justice requires.' He contends this phrase is also found in K.S.A.1972 Supp. 44-556, the Workmen's Compensation appeal statute, and we have construed that statute to permit a trial de novo in district court. He apparently believes administrative actions appealed pursuant to similarly worded appeal statutes are similar acts and deserve similar review on appeal. Since Gawith v. Gage's Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P.2d 966, a Workmen's Compensation appeal, adopted the rationale that the function of the Workmen's Compensation Director is judicial and the office is classified as a 'quasi-judicial' agency, Copeland asserts the action of the Board in revoking his license is judicial. He then directs our attention to our definition of 'quasi-judicial' in Thompson v. Amis, 208 Kan. 658, 493 P.2d 1259:

'. . . (Q)uasi-judicial is a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of judicial nature.' (p. 663, 493 P.2d p. 1263.)

He concludes since the record discloses in this case that the Board investigated facts, weighed evidence, drew conclusions, and exercised discretion of a judicial nature, the rule permitting a trial de novo as set forth in Gawith should be applied in this action. This argument has no merit. Copeland fails to recognize the point in Gawith which was determinative:

'. . . When courts are confronted with the problem of determining whether an administrative agency performs legislative or judicial functions, they rely on certain tests to aid in classifying the agency's functions. One such test is whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative agency must make. Another test is whether the function the administrative agency performs is one that courts historically have been accustomed to perform and had performed prior to the creation of the administrative body.' (p. 178, 476 P.2d p. 973.)

Historically, the function performed by the Director is one which the courts performed prior to passage of the Workmen's Compensation Act, thus fulfilling the quoted test. The legislature may impose a function upon the courts that is clearly judicial, but by reason of the separation of powers doctrine the legislature cannot impose a legislative function upon the judiciary. (Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 510 P.2d 132.) The judicial nature of the functions of the Workmen's Compensation Director is clearly distinguishable from the functions of the Optometry Board relating to the licensing of optometrists. This court has previously spoken on the subject and declared the business of licensing to be an administrative function. (Marks v. Frantz, 183 Kan. 47, 325 P.2d 368; Lira v. Billings, 196 Kan. 726, 414 P.2d 13; Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828.) We can best dispose of Copeland's argument for trial de novo by reference to the rule stated in Marks:

'The true test of the validity of an order of an administrative body, such as the optometry board, revoking a license to practice the profession in this state, is whether the findings of the board are supported by competent and substantial evidence, and, further, whether, in view of all of the facts and circumstances of the case, the order of revocation is unreasonable, arbitrary or oppressive.' (Syl. 4.)

Copeland contends in Point II that the procedure and conduct of his hearing was arbitrary, capricious and unreasonable and makes several arguments. He contends a fair trial could not result because of the manner of nomination and appointment of members of the Optometry Board. This argument is without merit. The duty to administer and enforce the optometry laws of this state and to regulate the practice of the profession of optometry is cast upon the Kansas Board of Examiners in Optometry. (K.S.A. 74-1501 to 74-1504.) The legislature has provided such restrictive powers of appointment in many instances and the legislative direction as to the manner of appointment to the Optometry Board has been found to be constitutional. (Marks v. Frantz, supra.)

Copeland further argues the concern of the grievance committee of the Kansas Optometric Association, who filed the complaint against him, was his threat to the economics of the profession rather than professional ethics and such a concern provides a basis for claiming the action of the Board was arbitrary or capricious. The issue in this proceeding is one of ethics as set forth by the statutes and if violations are supported by evidence the economic overtones are immaterial.

Copeland claims he had no opportunity to prepare a defense. This argument is not supported by the record. We have examined the 'Notice of Complaint and Hearing' and find it sets forth in reasonable detail the nature of the charges. The record also reveals Copeland had due notice of all hearings, and participated in and was represented by counsel in a full and complete hearing on the issues. A continuance was granted for two months during which time Copeland and his counsel were afforded an opportunity to...