Metz v. Veterinary Examining Bd., 2006AP1611.

• Decision Date: 27 September 2007
• Docket Number: No. 2006AP1611.,2006AP1611.
• Citation: 741 N.W.2d 244,2007 WI App 220
• Parties: James METZ, D.V.M., Plaintiff-Appellant v. VETERINARY EXAMINING BOARD, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

741 N.W.2d 244

2007 WI App 220

James METZ, D.V.M., Plaintiff-Appellant^† v. VETERINARY EXAMINING BOARD, Defendant-Respondent.

No. 2006AP1611.

Court of Appeals of Wisconsin.

Oral Argument March 19, 2007.

Opinion Filed September 27, 2007.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Eric M. McLeod and Roisin H. Bell of Michael Best & Friedrich, LLP, Madison. There was oral argument by Eric M. McLeod.

On behalf of the defendant-respondent, the cause was submitted on the brief of Thomas J. Balistreri, assistant attorney general, and Peggy A. Lautenschlager and J.B. Van Hollen, attorneys general. There was oral argument by Thomas J. Balistreri.

Before HIGGINBOTHAM, P.J., VERGERONT and LUNDSTEN, JJ.

¶ 1 VERGERONT, J

This case presents a significant issue on the relationship between a pending administrative proceeding and a circuit court action for declaratory and injunctive relief challenging the administrative proceeding. James Metz, a licensed doctor of veterinary medicine, filed this action challenging an administrative disciplinary proceeding filed against him before the Veterinary Examining Board. In this action, Dr. Metz seeks a declaration that the definition of a veterinarian-client-patient-relationship in WIS. STAT. § 453.02(8) (2005-06)¹ is void for vagueness as applied to him; a declaration that the Board is applying a rule to him without having properly promulgated it as required by WIS. STAT. ch. 227; and an injunction against the Board pursuing the administrative action against him. After the circuit court denied the Board's motion for summary judgment, it granted the Board's motion for an order remanding the matter to the administrative agency for fact-finding. Both the Board's appeal of the denial of its motion for summary judgment and Dr. Metz's appeal of the remand order are before us.

¶ 2 We conclude that the doctrine of exhaustion of administrative remedies applies to preclude Dr. Metz from interrupting the administrative process to obtain declaratory and injunctive relief from the court. Accordingly, we reverse the circuit court's order denying summary judgment in favor of the Board, reverse the circuit court's remand order, and we remand to the circuit court with directions to grant summary judgment in favor of the Board and dismiss this action.

BACKGROUND

¶ 3 In December 2003, the Department of Regulation and Licensing, Division of Enforcement filed a complaint against Dr. Metz before the Board. The administrative complaint alleged that Dr. Metz was vice-president of Animart, Inc. and during specified time periods, he sold or dispensed, through Animart, certain veterinary prescription drugs, including extra label use drugs, to named farm owners without establishing and maintaining a veterinary-patient-client (VPC) relationship in violation of WIS. STAT. § 453.068(1)(c).²

¶ 4 Approximately two months later Dr. Metz filed this action, and the administrative proceeding was stayed. In this complaint he alleges that the definition of a VCPR relationship in WIS. STAT. § 453.02(8)³ does not provide objective standards or the specificity needed to provide fair notice to those who wish to obey, and it is therefore void for vagueness on its face and as applied to him.⁴ He also alleged that in the administrative investigation and proceeding against him, the Board was enforcing § 453.02(8) by applying a policy that had not been promulgated as a rule as required by WIS. STAT. § 227.10(1),⁵ and the policy was therefore invalid under WIS. STAT. § 227.40(4)(a).⁶ The complaint sought declaratory relief and a permanent injunction enjoining the Board from enforcing its invalid policy against him and from enforcing § 453.02(8) in the absence of a properly promulgated administrative rule.

¶ 5 The Board moved for summary judgment and included the administrative complaint with its brief.⁷ Once it became clear that Dr. Metz was not pursuing the facial challenge to the statute,⁸ the Board's position was that the only issue properly before the court on the as-applied vagueness challenge was whether the statute was unconstitutionally vague as applied to the conduct alleged in the administrative complaint. As for the rulemaking claim, the Board's position was that, based on the allegations in Dr. Metz's complaint, the Board was not applying an unpromulgated rule but was applying the statute to the facts of this particular case. Dr. Metz argued in response that whether he was entitled to declaratory relief on his claims could not be determined based on his complaint or the administrative complaint, and he submitted numerous factual materials in support of his claims. The court denied the Board's motion for summary judgment because it concluded that the Board could not prevail without submitting any factual materials on the merits of Dr. Metz's claims.

¶ 6 The Board filed a petition for interlocutory appeal of the denial of its summary judgment motion and we denied the petition.⁹

¶ 7 After the circuit court granted Dr. Metz's motion to compel discovery,¹⁰ the Board moved for a remand to the administrative agency for fact-finding. Over Dr. Metz's objection, the court granted this motion. In its oral ruling, the court recognized that this was an unusual situation now that there was no issue as to the constitutionality of the statute on its face and it concluded that the proper procedure was for the administrative agency to find the facts for Dr. Metz's as-applied vagueness challenge. The court's remand order stated that it was retaining jurisdiction to decide whether WIS. STAT. § 453.02(8) is unconstitutional as applied to the facts found by the Board.¹¹

¶ 8 Dr. Metz filed a petition for interlocutory appeal of the remand order and we granted leave to appeal because we saw a need to clarify the correct procedure. After oral argument, we directed supplemental briefing on a number of issues, including whether Dr. Metz had the right to obtain a declaratory ruling and an injunction given that the administrative proceeding was pending.

DISCUSSION

¶ 9 As a threshold matter, we consider whether we should revisit our decision to deny the Board's petition for interlocutory review of the circuit court's order denying its motion for summary judgment. In response to Dr. Metz's petition for interlocutory review of the remand order, the Board asked that, if we granted that petition, we reconsider our denial of its petition for interlocutory review. The Board argued that the issues raised by the two petitions were interrelated. We denied the Board's request. We now reconsider that request and, for the following reasons, we grant the Board's petition for interlocutory appeal of the court's denial of its motion for summary judgment.

¶ 10 We agree with the Board that our denial of its petition was based on a misunderstanding of the issue it sought to have reviewed. We now understand the fundamental issue the Board sought to raise was whether Dr. Metz was entitled to any relief in the circuit court beyond a determination whether, based on the facts alleged in the administrative complaint, the statute was unconstitutionally vague as applied to him. This issue is inextricably connected to the Board's motion for remand, because, as the Board explains, it brought that motion only because the circuit court rejected its fundamental position and we did not grant interlocutory review. In addition, Dr. Metz's opposition to the Board's motion for summary judgment is grounded in the same position that is the basis for his appeal of the remand order: that he is entitled, at the complaint stage of the administrative proceeding, to pursue his claim for declaratory and injunctive relief in the circuit court, and, if the Board does not present to the circuit court the facts supporting the administrative complaint, he is entitled to summary judgment on his claims. In these circumstances we conclude that granting the Board's petition for interlocutory review will permit us to more completely resolve the issues implicated by Dr. Metz's petition for review of the remand order.

¶ 11 Dr. Metz's complaint seeks, in the circuit court, development of the factual basis for the administrative charges brought against him and a declaratory ruling that the statute is unconstitutionally vague as applied to those facts. The supplemental briefing makes clear that Dr. Metz is not seeking a declaratory ruling based on the allegations in the administrative complaint and he is not arguing that, if the court confines its analysis to the allegations in the administrative complaint, he is entitled to a declaratory ruling in his favor.¹² Thus, the real issue in dispute is whether Dr. Metz is entitled to fact-finding and a declaratory ruling in the circuit court (and injunctive relief if he is successful) on his claim that the statute is unconstitutionally vague as applied to him. This implicates the doctrine of exhaustion of administrative remedies and we turn to a discussion of this doctrine.

¶ 12 Generally, when a statute sets forth a procedure for review of administrative action and court review of an administrative decision, this remedy is exclusive and must be employed before other remedies are used. Nodell Inv. Corp. v. City of Glendale, 78 Wis.2d 416, 422, 254 N.W.2d 310 (1977). Two complementary doctrines have developed based on this principle: exhaustion of administrative remedies, which contemplates a situation in which administrative action has begun but has not yet been completed, and primary jurisdiction, which applies when there has been no administrative proceeding. See id. at 427 n. 13, 254 N.W.2d 310. In this case, because an administrative complaint has already been filed, we are concerned with the exhaustion doctrine.

¶ 13 The exhaustion doctrine is typically applied when a party seeks judicial intervention before completing all the steps in the administrative process. County of Sauk v. Trager, 118 Wis.2d...