Mississippi State Bd. of Nursing v. Wilson

• Decision Date: 02 September 1993
• Docket Number: No. 91-CA-54,91-CA-54
• Citation: 624 So.2d 485
• Parties: MISSISSIPPI STATE BOARD OF NURSING v. John WILSON.
• Court: Mississippi Supreme Court

Page 485

624 So.2d 485

MISSISSIPPI STATE BOARD OF NURSING v. John WILSON.

No. 91-CA-54.

Supreme Court of Mississippi.

Sept. 2, 1993.

Michael C. Moore, Atty. Gen., Sara E. DeLoach, Sp. Asst. Atty. Gen., Alice D. Wise, Sp. Asst. Atty. Gen., Jackson, for appellant.

John Robert White, E. Michael Marks, Jackson, for appellee.

Before PRATHER, P.J., and BANKS and SMITH, JJ.

BANKS, Justice, for the court:

In this appeal from a judgment of the Chancery Court of the First Judicial District of Hinds County reversing a decision of an administrative agency, we are asked to decide whether the decision rendered by the Mississippi State Board of Nursing revoking the nursing license of John Wilson is supported by substantial, credible evidence that he (1) was addicted to or dependent upon alcohol or other habit-forming drugs, primarily cocaine, within the meaning of the statute, and (2) engaged in conduct constituting a crime and likely to deceive, defraud or harm the public. Wilson raises six (6) issues in a cross-appeal from the judgment of the chancery court reversing the decision of the Board as to the addiction issue and resinstating Wilson, despite a finding upholding the decision of the Board with respect to the conduct issue. The issues raised by Wilson in his cross-appeal are either moot or devoid of merit. We affirm the chancellor as to the addiction issue. We reverse her order reinstating Wilson, however, and remand this matter to the Board of Nursing for consideration whether his license should be revoked on the conduct issue standing alone.

I

John Wilson is a forty-two year old licensed registered nurse who was employed in 1987 as a nursing supervisor in the Chemical Dependency Unit at the Mississippi State Hospital at Whitfield. Wilson had been previously employed as a nurse at the St. Joseph Memorial Hospital in Meridian, Mississippi, and the Delta Medical Center in Greenville.

Transcripts of prior hearings conducted before the Board of Nursing on December 2, 1976; January 17, 1979; March 27, 1980; and March 26, 1981, were introduced into evidence and reflect Wilson's prior history with habit-forming drugs.

The transcript of the 1976 hearing reflects that Wilson's license was revoked--with revocation suspended for two years and stipulations attached--after he misappropriated a bottle of cocaine from the pharmacy at St. Joseph Memorial Hospital. Wilson had entered a plea of guilty to petit larceny in Lauderdale County and had paid a hundred dollar fine.

The transcript of the 1979 hearing reflects that Wilson fulfilled the stipulations with his revocation of suspension of license and that said stipulations were removed from his license to practice nursing.

The transcript of the 1980 hearing reflects that in March of 1980 Wilson's nursing license was revoked after he was found to be "habitually intemperate" with habit-forming drugs, namely, demerol and morphine, while employed by the Delta Medical Center in Greenville, Mississippi. Wilson, who entered a plea of guilty before the board, freely admitted during this hearing that over a short period of time he misappropriated for his own personal use the equivalent of two boxes of demerol and morphine that were missing from the "emergency department." Wilson claimed this was his first encounter with the use of drugs and testified he personally used the drugs over a period of two months. During this hearing in 1980 Wilson freely admitted he had a drug problem.

Finally, the transcript of the 1981 hearing reflects that after Wilson's self-use of demerol and morphine by injection in 1979 or 1980, his nursing license was reinstated on March 26, 1981, following a series of drug screens which were negative for habit-forming drugs. During this hearing Wilson again alluded to his problem with drugs.

On January 17, 1990, Wilson appeared at another disciplinary hearing conducted before the Board of Nursing. This time in the wake of a complaint filed on November 16, 1989, charging that Wilson violated Miss.Code Ann. Sec. 73-15-29(1)(h) (Supp.1992) in that he was addicted to or dependent on alcohol or other habit-forming drugs; Miss.Code Ann. Sec. 73-15-29(1)(j) (Supp.1992) in that Wilson engaged in conduct constituting a crime, i.e., false pretenses; and Miss.Code Ann. Sec. 73-15-29(1)(k) (Supp.1992) in that he engaged in conduct likely to deceive, defraud or harm the public. The latter two charges flowed from an allegation that Wilson, with the intent to defraud, fraudulently received from an employee an $80 check and converted these funds to his own use.

Following the testimony of seven (7) witnesses produced by the board, the testimony of Wilson in his own behalf, the introduction into evidence of bank and hospital records, and the introduction of the four (4) transcripts of previous hearings, the board found as a fact and concluded as a matter of law that Wilson was guilty of each of the three violations. On May 13, 1991, the board issued a final order revoking Wilson's nursing license.

On December 5, 1990, the chancellor issued her order finding that (1) Wilson's license was revoked on the basis of collective charges, (2) the decision of the board with respect to its finding of drug addiction and dependency was not supported by substantial evidence and was arbitrary and capricious, (3) the board met its burden of proof with regard to the two other charges, and (4) Wilson's license should be reinstated without restrictions.

The Mississippi State Board of Nursing [hereinafter "the Board of Nursing"] appeals from a judgment entered on December 5, 1990, by the Chancery Court of the First Judicial District of Hinds County reversing a decision rendered by the Board of Nursing and reinstating Wilson's nursing license without restrictions.

In its appeal to this Court, the Board of Nursing poses two inquiries for appellate scrutiny.

(1) Whether a finding by the Board of Nursing of cocaine addiction in violation of Miss.Code Ann. Sec. 73-15-29(1)(h) (Supp.1992)

was based upon substantial, credible evidence or was arbitrary and capricious.

(2) Whether the chancellor erred in reinstating Wilson's nursing license.

Wilson has filed a cross-appeal raising issues dealing with (1) the sufficiency of the evidence establishing that Wilson engaged in conduct constituting a crime in violation of Sec. 73-15-29(1)(j) and conduct likely to deceive, defraud or harm the public in violation of Sec. 73-15-29(1)(k), and (2) alleged violations of procedural due process implicating (a) purported violations of the Open Meetings Act, (b) the failure of the Board of Nursing to properly authenticate bank records, hospital records, and transcripts of prior hearings of the Board of Nursing, and (c) the adequacy of the board's findings of fact and conclusions of law.

II

A. Scope of Review

Our judicial review of this administrative appeal is limited. In Mississippi State Tax Commission v. Mississippi-Alabama State Fair, 222 So.2d 664 (Miss.1969), we recognized that

[o]ur Constitution does not permit the judiciary of this state to retry de novo matters on appeal from administrative agencies. Our courts are not permitted to make administrative decisions and perform the functions of an administrative agency. Administrative agencies must perform the functions required of them by law. When an administrative agency has performed its function, and has made the determination and entered the order required of it, the parties may then appeal to the judicial tribunal designated to hear the appeal. The appeal is a limited one, however, since the courts cannot enter the field of the administrative agency. The court will entertain the appeal to determine whether or not the order of the administrative agency (1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party. This rule has been thoroughly settled in this state.

See also United Cement Company v. Safe Air for the Environment, Inc., 558 So.2d 840 (Miss.1990); Melody Manor Convalescent Center v. Mississippi State Department of Health, 546 So.2d 972 (Miss.1989); Spradlin v. Board of Trustees of Pascagoula Municipal Separate School District, 515 So.2d 893 (Miss.1987); Eidt v. City of Natchez, 421 So.2d 1225 (Miss.1982); Mainstream Savings and Loan Association v. Washington Federal Savings and Loan Association, 325 So.2d 902 (Miss.1976).

"The only grounds for overturning administrative agency action by the appellate process is that the state agency has acted capriciously, unreasonably, arbitrarily; has abused its discretion or has violated a vested constitutional right of a party." Melody Manor Convalescent Center v. Mississippi State Department of Health, 546 So.2d 972, 974 (Miss.1989).

"Moreover, there is a rebuttable presumption in favor of the action of an administrative agency and the burden of proof is upon one challenging its action." County Board of Education of Alcorn County v. Parents and Custodians of Students at Rienzi School Attendance Center, 251 Miss. 195, 168 So.2d 814, 818 (1964). See also Mississippi Hospital Association, Inc. v. Heckler, 701 F.2d 511, 516 (5th Cir.1983) ["A presumption of validity attaches to agency action, and the burden of proof rests with the party challenging such action."]

The federal courts have held that the entire issue in judicial review of an administrative decision always is whether the decision was erroneous, and the Constitution is not implicated unless the decision goes beyond mere error to an intentional or reckless disregard of the constitutional rights of a person against whom the administrative decision is made. Bass v. United States Department of Agriculture, 737 F.2d 1408, 1415 (5th Cir.1984). Although there is a presumption of regularity, and while the "arbitrary and capricious" standard of review is highly deferential, it is by...