Schierding v. Missouri Dental Bd., 49415

• Decision Date: 01 October 1985
• Docket Number: No. 49415,49415
• Citation: 705 S.W.2d 484
• Parties: Vernon R. SCHIERDING, Plaintiff-Appellant, v. MISSOURI DENTAL BOARD, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 484

705 S.W.2d 484

Vernon R. SCHIERDING, Plaintiff-Appellant, v. MISSOURI DENTAL BOARD, Defendant-Respondent.

No. 49415.

Missouri Court of Appeals,

Eastern District,

Division Two.

Oct. 1, 1985.

Motion for Rehearing and/or Transfer

Denied Nov. 12, 1985.

Case Transferred to Supreme Court

Dec. 17, 1985.

Case Retransferred to Court of Appeals

March 24, 1986.

Original Opinion Reinstated

March 28, 1986.

Fred Roth, St. Louis, for plaintiff-appellant.

Dennis K. Hoffert, St. Louis, for defendant-respondent.

SIMON, Presiding Judge.

Vernon R. Schierding (Schierding) appeals from the trial court's dismissal of his two count petition seeking declaratory and injunctive relief in his challenge to Missouri dental statutes and regulations. In 1981 the Missouri Dental Board (Board) initiated a disciplinary action with the Administrative Hearing Commission of Missouri against Schierding, a Missouri dentist, for his violations of certain statutory provisions and administrative rules including those prohibiting dental auxiliaries from performing certain dental functions because of their lack of formal education. About one month prior to the administrative hearing, Schierding filed a two count petition in the Circuit Court of St. Louis County with a motion to stay the pending administrative proceeding. Count I of Schierding's petition sought declaratory relief, alleging that certain portions of Chapter 332, the Dental Practice Act, dental regulations promulgated thereunder, and Chapter 536, the Administrative Procedure Act, violate both federal and state constitutional guarantees because they are overly restrictive with no reasonable relationship between the standards imposed and the purposes to be achieved. The general tenor voiced by Schierding in his constitutional challenge is that the statutory treatment accorded physicians and their assistants compared with dentists and their dental assistants under Missouri law is disparate and that this disparity denies Schierding equal protection. Count II sought injunctive relief to enjoin the Board's action against Schierding. Schierding appeals from the trial court's dismissal of his two count petition seeking declaratory and injunctive relief. We affirm.

The trial court stated no reasons for its action, so this court must assume that it was for the reasons alleged in the motion to dismiss. Pic-Walsh Freight Co. v. Cooper, 618 S.W.2d 449, 452 n. 5 (Mo.App.1981). The Board's motion to dismiss contained the following grounds: (1) Schierding's sale of his dental business and the absence of any dental practice by him in Missouri precluded his claim of irreparable harm; (2) no case or controversy existed since the exhaustion of administrative remedies had not occurred; therefore, the case was not ripe and any ruling by the trial court prior to the conclusion of the administrative action would be advisory in nature.

Schierding's first point contends the trial court's dismissal of the circuit court action on the ground that Schierding's sale of his dental practice rendered his action moot is erroneous because the trial court ignored evidence of Schierding's intention to relocate and to continue his practice. He further states the dismissal on the ground the suit was not ripe because the issues it raised were properly cognizable in an administrative review action is erroneous because: (1) the Administrative Hearing Commission has no jurisdiction to entertain Schierding's constitutional challenge; (2) the declaratory judgment action is a prerequisite for Schierding's raising his constitutional claim; (3) the constitutional claim must be adjudicated before the exhaustion of administrative remedies; and (4) the constitutional right to jury is available in a judicial, and not an administrative, proceeding.

The thrust of Schierding's argument is the dispositive issue whether he may challenge the constitutionality of Missouri's dental statute without first exhausting his administrative remedies. Schierding relies chiefly upon Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) for the proposition that where the issue of the constitutionality of a statute is raised, the court may decide it without waiting for an administrative proceeding. Schierding's reliance is misplaced. The Supreme Court in Salfi, construing the doctrine of exhaustion of administrative remedies in regard to the Social Security Act, stated as follows:

We have previously recognized that the doctrine of administrative exhaustion should be applied with a regard for the particular administrative scheme at issue. [citations omitted] Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. [citations omitted] Plainly these purposes have been served once the Secretary has satisfied himself that the only issue is the constitutionality of a statutory requirement, a matter which is beyond his jurisdiction to determine, and that the claim is neither otherwise invalid nor cognizable under a different section of the Act. Once a benefit applicant has presented his or her claim at a sufficiently high level of review to satisfy the Secretary's administrative needs, further exhaustion would not merely be futile for the applicant, but would also be a commitment of administrative resources...