Dawson v. Birenbaum

• Decision Date: 16 April 1998
• Docket Number: No. 96-SC-1115-DG,96-SC-1115-DG
• Citation: 968 S.W.2d 663
• Parties: Royce E. DAWSON, M.D.; Olney M. Patrick, M.D.; John S. Llewellyn, M.D.; Danny M. Clark, M.D.; Frank M. Gaines, Jr., M.D.; Cornelia Serpell; Charles L. Conley, D.O.; and Walter R. Brewer, M.D., as members of the Kentucky Board of Medical Licensure, and the Kentucky Board of Medical Licensure Appellants, v. Georges BIRENBAUM, M.D. Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 663

968 S.W.2d 663

Royce E. DAWSON, M.D.; Olney M. Patrick, M.D.; John S Llewellyn, M.D.; Danny M. Clark, M.D.; Frank M. Gaines Jr., M.D.; Cornelia Serpell; Charles L. Conley, D.O.; and Walter R. Brewer, M.D., as members of the Kentucky Board of Medical Licensure, and the Kentucky Board of Medical Licensure Appellants, v. Georges BIRENBAUM, M.D. Appellee.

No. 96-SC-1115-DG.

Supreme Court of Kentucky.

April 16, 1998.

C. Lloyd Vest, II, Louisville, for Appellants.

Kent Masterson Brown, Christopher J. Shaughnessy, Danville, for Appellee.

LAMBERT, Justice.

The issue in this case is whether a party who has alleged both federal constitutional claims and state statutory claims in state court, and prevailed on the state claims with the federal claims having been left unresolved, may recover attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (§ 1988). For the reasons set forth below, we hold that such a party is a "prevailing party" who is eligible for attorney's fees under § 1988; providing entitlement is otherwise demonstrated.

This case arose as a result of actions taken by the Kentucky Board of Medical Licensure (Board), against appellee Georges Birenbaum, M.D. The Board is charged with the duty to "regulate, control and otherwise discipline the licensees who practice medicine and osteopathy within the Commonwealth of Kentucky." KRS 311.555. The procedural framework the Board must follow for investigating and disciplining licensed medical doctors is established in KRS 311.591. Under the statute, the president of the board divides the members of the board into two panels. The inquiry panel is charged with investigating the grievances which are filed with the Board. Under section three (3) of the KRS 311.591, when an inquiry panel investigation is concluded, it is authorized to take only one of three actions: (1) it may find that the grievance is without merit and that further action by the board is not necessary; (2) it may find the physician's misconduct insufficient to warrant a complaint, and thus may issue an admonishment; or, (3) it may issue a complaint against the physician. If a complaint is issued by the inquiry panel, then the hearing panel takes over, and ultimately hears the case against the licensee.

Appellee is an ophthalmologist licensed by the board, practicing in Fayette County. In November of 1990 two grievances were filed against appellee with the board, and in March, 1991 another grievance was filed against him. Pursuant to KRS 311.591, the grievances were assigned to an inquiry panel, and that panel investigated the grievances. The minutes of the August 15, 1991 meeting of the inquiry panel reveal the action taken:

...ACTION: Upon discussion, a motion was made by Dr. Gaines that it appeared no violation of the Medical Practice Act occurred in this case and the investigation should be closed. Dr. Gaines further recommended that ten additional patient records should be obtained for further review by a Board consultant. Seconded by Ms. Serpell, the motion carried.

In addition, appellee was notified that his license was placed on "monitor status" at that meeting by a letter dated January 9, 1992, from Lee Weese a "probation officer" with the Board. That letter stated:

The Kentucky Board of Medical Licensure Inquiry Panel A, at its meeting on August 15, 1991, reviewed an investigation regarding the care and treatment you provided to an individual patient.

After long and thoughtful review, it was the consensus of the Panel that your license to practice medicine in the Commonwealth of Kentucky be placed in a monitor status.

Thus, contrary to KRS 311.591(3) the inquiry panel did not issue a complaint against appellee, admonish appellee for any misconduct, or decide that no further action was necessary. Rather, the inquiry panel placed appellee's medical license on "monitor status" and subpoenaed additional patient records from his office for review. Prior to such action, appellee was not afforded a hearing before the Board regarding the status of his license, and he was not given notice of the Board's action placing his license on "monitor status" until January 1992, well after the Board had taken the August 1991 action. On February 20, 1992, the inquiry panel again discussed the status of appellee's license, and denied appellee's request to be removed from "monitor status." ¹

Appellee challenged the board's actions by seeking a declaration of rights and injunctive relief in the Jefferson Circuit Court. In his complaint, appellee alleged that the board's actions violated statutory procedures set out in KRS 311.530 to 311.620, specifically KRS 311.591 and KRS 311.605. He also asserted claims pursuant to 42 U.S.C. § 1983 for vindication of his rights under the Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution; and he asserted that he should be awarded attorney's fees pursuant to 42 U.S.C. § 1988.

The circuit court granted summary judgment for appellee on his state statutory claims. The circuit court did not address appellee's federal constitutional claims, but focused on the propriety of the Board's actions in light of controlling state statutes. The court held that the Board, in placing appellee's medical license on "monitor status," deviated from the statutory procedure set out in KRS 311.591. The court concluded that "there is no authorization in the statute for a 'monitor' status and that the Board must either [follow the procedure of] KRS 311.591(3), or, cease and desist its periodic review of Plaintiff's files." The court was also highly critical of the Board's actions taken at the August 1991 meeting:

... Assuming the additional inquiry commenced in August, 1991, how long must the Plaintiff expect to be kept under the cloud of investigation? Is this truly an active ongoing investigation by the Board of some existing misconduct as defined by KRS 311.595, or is it some kind of quasi disciplinary action called "monitor status ."?

The Court from the undisputed facts, can only infer that this is some sort of quasi disciplinary action taken without compliance with the literal intent of the statute.

Appellee moved for attorney fees pursuant to 42 U.S.C. § 1988. The circuit court denied attorney's fees based on KRS 311.603, a statute which confers immunity on the board for actions taken within the scope of its authority. The circuit court also noted that the statutory provisions regulating the board's powers and functions did not provide for attorney's fees. Additionally, the court pointed out that its previous order was based solely on Kentucky statutory law, and that no determination regarding appellee's constitutional claim had been made.

The Court of Appeals reversed the circuit court's denial of fees, and remanded for a determination of the amount of fees. The Court of Appeals also held that the board was not immune to an award of attorney fees under § 1988, because under the Supremacy Clause, § 1988 pre-empted the state's statutory grant of immunity to the board. See also, Hutto v. Finney, 437 U.S. 678, 693-94, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522 (1978), as follows:

Congress has plenary power to set aside the States' immunity from retroactive relief in order to enforce the Fourteenth Amendment. When it passed the Act, Congress undoubtedly intended to exercise that power and to authorize fee awards payable by the States when their officials are sued in their official capacities. The Act itself could not be broader. It applies to "any" action brought to enforce certain civil rights laws. It contains no hint of an exception for States defending injunction actions; indeed, the Act primarily applies to laws passed specifically to restrain state actions.

42 U.S.C.1988 provides in pertinent part:

§ 1988. Proceedings in vindication of civil rights

(b) Attorney's fees

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C.A.2000bb et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A.2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer shall not be held liable for any costs, including attorney's fees, unless such action was clearly in excess of such officer's jurisdiction.

It is clear that claims for attorney's fees under this act may be brought in state courts. Maine v. Thiboutot, 448 U.S. 1, 10-11, 100 S.Ct. 2502, 2507-08, 65 L.Ed.2d 555, 563 (1980). It is also clear that appellee's complaint was brought in part pursuant to § 1983; thus his claim for § 1988 attorney's fees was properly before the circuit court. However, inasmuch as the circuit court did not reach appellee's federal claims, we must decide whether appellee may be awarded attorney's fees after prevailing only on his state law claim.

It is well settled that where a party pleads both statutory and constitutional claims, the court deciding those claims should limit itself to considering the statutory claims if in so doing the court may avoid deciding complex constitutional issues. Preston v. Clements, Ky., 313 Ky. 479, 232 S.W.2d 85, 88 (1950) ("The prevailing rule seems to be that the courts will avoid the question of constitutionality unless necessary to a proper determination of the merits of the cause under consideration."). In an apparent effort to follow this doctrine without also defeating attorney's fees statutes, a number of state courts have awarded fees where both state and federal constitutional claims were pleaded, but where only the state claim was resolved. To decide whether § 1988 fees may...