Johnson v. Board of Governors of Registered Dentists of State of Okl.

Decision Date19 March 1996
Docket NumberNo. 82371,82371
Citation1996 OK 41,913 P.2d 1339
PartiesCharles Ray JOHNSON, D.M.D., Appellee/Counter-Appellant, v. BOARD OF GOVERNORS OF REGISTERED DENTISTS OF the STATE OF OKLAHOMA, a Body Politic and Corporate, Appellant/Counter-Appellee.
CourtOklahoma Supreme Court
Concurring Opinion of Justice Opala
Corrected March 25, 1996.

As Corrected May 2, 1996.

Appeal from the District Court of Oklahoma County, Oklahoma, Honorable Richard Freeman, Judge.

Hammons & Associates by Mark Hammons, Oklahoma City, Oklahoma, for appellee/counter-appellant Charles Ray Johnson, D.M.D.

Susan B. Loving, Attorney General of Oklahoma, Rabindranath Ramana, Scott Boughton, James Robert Johnson, Assistant Attorneys General, Oklahoma City, Oklahoma, for appellant/counter-appellee Board of Governors of Registered Dentists of State of Oklahoma.

HODGES, Justice.

I. Issues

The issues before this Court are (1) whether the district court had jurisdiction, (2) whether an administrative agency is required to adopt rules under rule-making procedures setting out standards for the imposition of punishment, (3) what is the standard of proof for imposing discipline in a proceeding against a person who holds a professional license, (4) whether the rule establishing the standard of proof in this matter as a preponderance of the evidence was properly promulgated as an emergency rule, and (5) whether the district court erred when it ordered the members of the Board of Governors of Registered Dentists of the State of Oklahoma (Board or Dental Board), including the member conducting the investigation, disqualified. We hold (1) the district court had jurisdiction over this matter, (2) the Board was not required to establish guidelines for the imposition of discipline, (3) the proper standard of proof in disciplinary proceedings against a person holding a professional license is clear and convincing evidence, and (4) the district court was within its discretion when it ordered the members of the Board disqualified from hearing the proceeding against the appellee. Because we find the proper standard of proof is clear and convincing, we need not address the procedures under which the Board promulgated the rule establishing a preponderance of the evidence as the standard of proof.

II. Facts

The Board's statement of the facts is uncontested. Beginning January 1992, the Board received some complaints against Dr Dr. Farley then conducted his own investigation. 1 Dr. Farley determined the evidence warranted a hearing and requested the Board appoint him as the investigatory officer. The Board granted his request at its March 14, 1992 meeting. At the May meeting, Dr. Farley recommended a hearing be set as soon as the statutes allowed. Thus, the Board voted to hold the hearing on May 30, 1992. Following the May meeting and without a vote of the Board, the Board's special prosecutor issued a formal complaint against Dr. Johnson. 2 Dr. Farley admits it was his decision to issue the formal complaint but insists he was acting on behalf of the Board.

Johnson, the plaintiff in this case. The complaints alleged Dr. Johnson allowed dental assistants to perform procedures which should have been performed only by a licensed dentist. The complaints were initially investigated by the Board's investigator, David Murdock. On finishing his investigation, Mr. Murdock drafted a summary of his findings. Based on an unwritten practice of the Board, the summary was submitted to the Board member for the district in which the complaints arose. The member in this case was Dr. James Farley. Dr. Farley was a competitor of Dr. Johnson since they practiced in the same geographical area.

After the formal complaint was issued and the hearing was set, Dr. Johnson requested a continuance of ninety days which was granted in part with the hearing rescheduled for July 24, 1992. On July 15, 1992, Dr. Johnson filed a petition in the district court. On July 21, the district court granted Dr. Johnson a temporary restraining order prohibiting the Board from holding an administrative hearing and setting the matter for a hearing in the district court for permanent relief.

On August 11, 1992, the Board's new president ordered a hearing before the Board on September 10, 1992. On September 1, 1992, Dr. Johnson filed another request for an injunction against the Board. After a hearing, the district court found if the Board's hearing were held on September 10, 1992, Dr. Johnson could not prepare an adequate defense. The district court found the Board had not complied with parts of Dr. Johnson's discovery requests. On October 6, the district court filed an order enjoining the Board from holding a disciplinary hearing before December 7, 1992.

On January 7, 1993, the Board held a meeting at which it voted not to disqualify Dr. Farley as the investigating officer and not to disqualify the other members of the Board from hearing the allegations against Dr. Johnson. At the same meeting, the Board voted not to adopt certain rules but defined the standard of proof in the proceedings against Dr. Johnson as a preponderance of the evidence.

As a result of the action taken at this January meeting, Dr. Johnson again filed a petition in the district court asking it to enjoin the Board from proceeding against him because the Board had not properly adopted a rule setting the standard of proof in disciplinary proceedings as clear and convincing. Dr. Johnson also requested the members of the Board, including Dr. Farley, be disqualified in the proceedings against him. The district court entered a temporary stay until the issues raised by Johnson could be resolved.

The district court cases were then consolidated. At a hearing on March 24, 1993, the district court issued a writ of prohibition from the bench. Then on April 27, 1993, it entered a written order prohibiting the Board from proceeding against Dr. Johnson In the interim, on April 2, 1993, the Board adopted a rule under the emergency procedures setting the standard of proof as a preponderance of the evidence. The rule was filed with the Governor on April 8, 1993, and signed by the Governor on May 21, 1993, forty-three days after it was filed with the Governor but more than forty-five days after it was adopted.

until it had properly enacted rules in compliance with the Administrative Procedures Act. The district court refused to identify particular deficiencies but found that the Board had failed to adopt a rule establishing the standard of proof in disciplinary proceedings.

After the rule was signed by the Governor, Dr. Johnson filed a motion for summary judgment and supplements thereto arguing the rule was not properly adopted. He also reasserted the proper standard of proof was clear and convincing evidence and the members of the Board should be disqualified from proceeding against him.

On September 17, 1993, the district court issued an order which is the subject of this appeal. The district court (1) found the rule adopting a preponderance of the evidence as the standard of proof in disciplinary proceedings before the Board was properly adopted and complied with due process requirements, (2) found the Board's complaint against Dr. Johnson was void because it had not been properly issued, (3) prohibited the Board from taking any disciplinary action against Dr. Johnson until it adopted rules establishing objective guidelines categorizing offenses by seriousness and specifying a punishment proportionate to the seriousness of the offense, and (4) disqualified the present members of the Board, including the member investigating the charges, from participating in any disciplinary proceedings against Dr. Johnson. The Board appealed, and Dr. Johnson filed a counter-appeal.

III. Jurisdiction

The Dental Board is subject to the Administrative Procedures Act. Okla.Stat. tit. 75, §§ 301-323 (1991). Section 306 authorizes an action for declaratory judgment to test the validity of an agency rule. Section 318 provides for judicial review of final agency orders. Section 328.43 of title 59 provides that an appeal from a disciplinary proceeding is in the district court. The Board argues Dr. Johnson is appealing an interlocutory order and, under these statutory provisions, the district court does not have jurisdiction until a final order issues.

Generally, a litigant must seek review of agency decisions in a manner prescribed by statute and cannot invoke the jurisdiction of the court in a separate proceeding. Conoco, Inc. v. State Dep't of Health of the State of Oklahoma, 651 P.2d 125, 129 (Okla.1982); Martin v. Harrah Independent School District, 543 P.2d 1370, 1377 (Okla.1976). An independent action is permitted where the judicial review of an agency decision "fails to provide an adequate remedy." Martin, 543 P.2d at 1375. Statutory procedures can be circumvented when there is a constitutional question, inadequate administrative relief, and threatened or impending irreparable injury. Id. "A district-court action is not abatable if the uninvoked administrative remedy was unavailable, ineffective or would have been futile to pursue." Tinker Investment & Mortgage Corp. v. City of Midwest City, 873 P.2d 1029, 1038 (Okla.1994) (emphasis omitted).

Dr. Johnson has alleged a constitutional question in that the right to due process is a protection afforded by both the United States and the Oklahoma Constitutions. Due process "entitles a person to an impartial and disinterested tribunal in both civil and criminal" adjudicative proceedings. Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182 (1980); Gibson v. Berryhill, 411 U.S. 564, 578-79, 93 S.Ct. 1689, 1697-98, 36 L.Ed.2d 488 (1973). The lack of due process resulting from a biased tribunal cannot be corrected on appeal. Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 61, 93 S.Ct. 80, 83-84, 34 L.Ed.2d 267 (1972). Likewise, a professional whose license is at stake is ...

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