State, By and Through Mississippi Ethics Com'n v. Aseme

• Decision Date: 03 July 1991
• Docket Number: No. 07-CA-59343,07-CA-59343
• Citation: State, By and Through Mississippi Ethics Com'n v. Aseme, 583 So.2d 955 (Miss. 1991)
• Parties: The STATE of Mississippi, By and Through the MISSISSIPPI ETHICS COMMISSION, a State Agency; Walter Brown, Gene L. Fair, Mark G. Hazard, Ben H. Stone, Nina B. Goolsby, Delos H. Burks, Elizabeth C. Powers, and John Allen Darnell, in Their Official Capacities as Members of the Mississippi Ethics Commission v. Kate N. ASEME, M.D., Mississippi Hospital Association and Mississippi State Medical Association.
• Court: Mississippi Supreme Court

Page 955

583 So.2d 955

The STATE of Mississippi, By and Through the MISSISSIPPI ETHICS COMMISSION, a State Agency; Walter Brown, Gene L Fair, Mark G. Hazard, Ben H. Stone, Nina B. Goolsby, Delos H. Burks, Elizabeth C. Powers, and John Allen Darnell, in Their Official Capacities as Members of the Mississippi Ethics Commission v. Kate N. ASEME, M.D., Mississippi Hospital Association and Mississippi State Medical Association.

No. 07-CA-59343.

Supreme Court of Mississippi.

July 3, 1991.

Mike C. Moore, Atty. Gen., Larry E. Clark, Asst. Atty. Gen., Jackson, for appellants.

George Q. Evans, Wise Carter Child & Caraway, R. Mark Hodges, Wise Carter Firm, Jackson, Burke C. Murphy, Jr., Canton, for appellees.

Before DAN M. LEE, P.J., and PRATHER and PITTMAN, JJ.

DAN M. LEE, Presiding Justice, for the Court:

Today's case challenges the grant of summary judgment in a suit seeking declaratory judgment regarding the relationship between a public hospital and a physician who has been granted staff privileges at that public hospital. The Chancery Court of Hinds County, the Honorable Stuart Robinson presiding, determined that as a matter of law, such relationship does not, in and of itself, create a contract such that service of the physician upon the Board of Trustees of the institution violates Article 4, Sec. 109 of the Mississippi Constitution and Mississippi Code Annotated Sec. 25-4-105(2) (Supp.1990). We affirm.

I.

On June 16, 1987, in response to an inquiry regarding possible conflicts of interest if a medical doctor with staff privileges at a local, publicly-owned, community hospital was selected to sit on the Board of Trustees of that same institution, the Mississippi Ethics Commission [Commission] issued Advisory Opinion No. 87-36-E. In this advisory opinion the Commission concluded that

[A] hospital medical staff doctor can simultaneously serve in a limited and restrictive manner on that hospital's board of trustees up until, but not beyond, the time the Board considers his/her reappointment to the medical staff. The reappointment matter will occur within the first twelve months of the staff doctor's board service at which time the doctor will have to choose between leaving the medical staff or violating Section 109 of the constitution and Code Section 25-4-105(2)(f).

Dr. Kate N. Aseme, a member of the Mississippi State Medical Association, has enjoyed medical staff privileges at Forrest General Hospital since 1977. During August of 1987 Dr. Aseme was appointed to a five (5) year term on the Board of Trustees of Forrest General Hospital.

The Mississippi State Medical Association requested a reconsideration of Advisory Opinion 87-36-E by letter dated September 25, 1987. On October 2, 1987, the Commission heard oral arguments in support of the request for reconsideration, and on October 29, 1987, issued a clarifying Memorandum stating that Advisory Opinion 87-36-E would remain in full force and effect pending consideration of the reconsideration requests. The clarification memorandum reiterated that the Commission would not place this issue on its November 6, 1987, agenda, but the Commission would accept additional written materials on the issue of reconsideration through November 23, 1987. The record contains no other action taken by the Commission on the issue of reconsideration.

Dr. Aseme's reappointment to the medical staff of Forrest General Hospital was scheduled to be considered by the Forrest General Hospital Board of Trustees on March 15, 1988. On December 29, 1987, the Mississippi State Medical Association, the Mississippi Hospital Association [the Associations] and Dr. Aseme filed suit against the Commission in the Chancery Court of Hinds County, Mississippi seeking a declaratory judgment pursuant to M.R.C.P. 57 regarding Advisory Opinion 87-36-E. An Amended Complaint was filed January 4, 1988. In their complaint Dr. Aseme and the Associations alleged that To the extent that Advisory Opinion No. 87-36-E finds that a contractual relationship exists between a hospital and medical staff members, it is in conflict with an Official Attorney General's Opinion dated October 12, 1984, ... and with the Mississippi Supreme Court speaking in Trapp v. Cayson, 471 So.2d 375 (Miss.1985), and ignores the fact that medical staff membership is a privilege constituting as a matter of law a license and not a contract. Dr. Aseme and the associations specifically requested declaratory judgment that a contract within the meaning of Article 4, Section 109 of the Mississippi Constitution of 1890 and Miss.Code Ann. Sec. 25-4-105(2)(f) (Supp.1987) does not exist between a hospital board and each member of its medical staff.

The Commission filed its Answer March 14, 1988. On March 30, 1988, Dr. Aseme and the Associations moved for summary judgment. The Commission moved for summary judgment on April 13, 1988.

On May 24, 1988, finding that the case presented a question of pure law which was ideally suited for disposition through summary judgment, the Chancellor rendered his Opinion. The Opinion held that the mere grant of medical staff privileges does not constitute a contract between the public hospital and staff physician, reversed the Advisory Opinion of the Commission and granted summary judgment to Dr. Aseme and the Associations.

II.

We employ a de novo standard in reviewing a lower court's grant of a summary judgment motion. Cossitt v. Federated Guaranty Mut. Ins. Co., 541 So.2d 436, 438 (Miss.1989); Short v. Columbus Rubber & Gasket Co., Inc., 535 So.2d 61, 63 (1988). Thus, we use the same standard that was used in the trial court. 10 Wright, Miller & Kane, Federal Practice and Procedure Sec. 2716 (1983 and Supp.1988). We must review all evidentiary matters before us in the record: affidavits, depositions, admissions, interrogatories, etc. The evidence must be viewed in the light most favorable to the nonmoving party, who is to be given the benefit of every reasonable doubt. Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986); Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984). The burden of demonstrating that no genuine issue of fact exists is on the movant. Short v. Columbus Rubber and Gasket Co., 535 So.2d 61, 63-64 (Miss.1988). A motion for summary judgment lies only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). The Court does not try issues on a Rule 56 motion, it only determines whether there are issues to be tried. In reaching this determination, the Court examines affidavits and other evidence to determine whether a triable issue exists, rather than for the purpose of resolving that issue. Comment, M.R.C.P. 56.

In passing on questions of law our review is de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990); Cole v. National Life Ins. Co., 549 So.2d 1301, 1303 (Miss.1989); Busching v. Griffin, 542 So.2d 860, 863 (Miss.1989); Boggs v. Eaton, 379 So.2d 520, 522 (Miss.1980). This Court has the responsibility of making the final interpretations of our State's Constitution. Frazier v. State By and Through Pittman, 504 So.2d 675, 694 (Miss.1987).

III.

"The landmark case involving interpretation of Article 4, Section 109 of the Mississippi Constitution of 1890 and certain portions of Miss.Code Ann. Sec. 25-4-105 (Supp.1987) was Frazier v. State by and through Pittman, 504 So.2d 675 (Miss.1987)." Smith v. Dorsey, 530 So.2d 5, 9 (Miss.1988) (Prather, J. concurring in part and dissenting in part). Article 4, Section 109

prohibits any public officer or member of the legislature from:

(a) having any direct or indirect interest in any contract

(b) with the state or any political subdivision

(c) executed during his term of office or one year thereafter, and (d) authorized by any law, or order of any board of which he was a member.

At the outset we note that there is no difficulty in ascertaining (b) and (c), whether the contract was with some governmental entity and the time of its execution. We observe further that while (a) and (d) of the above factors are not always so clear-cut, the answer has usually been simple. See: Golding v. Salter, 234 Miss. 567, 107 So.2d 348 (1958) (county-owned hospital trustees were public officers and hospital purchasing eggs and beef from trustees violated 109); State ex rel Sterling v. Board of Levee Comm'rs, 96 Miss. 677, 51 So. 211 (1910) (president of levee board of commissioners was public officer and in violation of 109 when employed by levee board as special attorney); Noxubee County Hardware Co. v. City of Macon, 90 Miss. 636, 43 So. 304 (1907) (city alderman in violation of 109 when his retail business sold hardware supplies to city-owned electric utility).

* * * * * *

Further observations about 109:

First, it is clear this section is to protect the government. It is not a provision to protect individual rights. .... its purpose is to remove any temptation to invade its proscription.

It is also a self-executing section, and more specific than many, perhaps most, constitutional provisions. [citations omitted] It prohibits an individual having an interest in a contract when he as a public officer served on the official body which enabled the contract to come into being. It is that simple. Being self-executing, its provisions cannot be modified or encroached upon by the Legislature.

Frazier v. State By and Through Pittman, 504 So.2d 675, 693-94 (Miss.1987).

The facts of this case are undisputed. "At the outset, it is clear that no genuine issue of material fact exists with respect to this issue. The only question is one of law involving an analysis of case law and interpretation of the applicable statute. Our only question is whether the lower court reached the correct conclusion of law." Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 439 (Miss.1989). The question of law is whether the grant of medical staff privileges by a public hospital in and of...