State ex rel. Great Lakes College, Inc. v. Medical Bd.

• Decision Date: 15 March 1972
• Docket Number: No. 71-363,71-363
• Citation: 280 N.E.2d 900,29 Ohio St.2d 198,58 O.O.2d 406
• Parties: , 58 O.O.2d 406 The STATE ex rel. GREAT LAKES COLLEGE, INC., Appellant, v. State MEDICAL BOARD, Appellee.
• Court: Ohio Supreme Court

Page 198

29 Ohio St.2d 198

280 N.E.2d 900, 58 O.O.2d 406

The STATE ex rel. GREAT LAKES COLLEGE, INC., Appellant, v. State MEDICAL BOARD, Appellee.

No. 71-363.

Supreme Court of Ohio.

March 15, 1972.

Syllabus by the Court

1. Where the State Medical Board seeks to withdraw the standing accorded a school giving instruction in limited branches of medicine or surgery pursuant to R.C. § 4731.19, procedural due process requires notice and an opportunity for the school to be heard.

2. In the absence of a plain and adequate remedy in the ordinary course of the law, mandamus is an appropriate remedy to compel a public agency to perform an act which it has a legal duty to perform.

On January 22, 1971, The Great Lakes College, Inc., appellant herein, filed this action in mandamus in the Court of Appeals for Franklin County. Relator is a school of instruction in the limited fields of mechanotherapy and massage.

The complaint states that relator has existed in the city of Cleveland and has had a corporate charter under its present name since 1931; that on November 9, 1970, it received written notice from the State Medical Board, respondent-appellee, that at a meeting on November 5, 1970, respondent had 'withdrawn its approval of relator as a school to offer instruction in the limited branches of medicine and surgery. Further, that no graduate of relator would be admitted to examination for licensure to practice a limited branch of medicine and surgery.'

Relator's prayer is for a writ of mandamus to issue, 'compelling respondent State Medical Board to revoke its November 5, 1970 decision; to schedule a new hearing; and to afford relator the opportunity to be present at said hearing * * *.'

On February 24, 1971, respondent filed a motion to dismiss the complaint, alleging that the court lacked jurisdiction over the subject matter and that the complaint failed to state a claim upon which relief could be granted.

The Court of Appeals sustained the motion to dismiss, stating: 'Except for the requested relief seekig a hearing to which relator has no clear legal right, it appears that the real object of relator is for an injunction.' Because the Court of Appeals lacks original jurisdiction to grant an injunction, the complaint was dismissed.

The cause comes to this court upon appeal as a matter of right.

Brannon, Ticktin, Baron & Mancini and Russell Z. Baron, Cleveland, for appellant.

William J. Brown, Atty. Gen., I. B. Marks, Columbus, and A. W. Hoguet, III, Asst. Atty. Gen., for appellee.

CORRIGAN, Justice.

Two propositons of law are pressed by appellant in this appeal. First, appellant asserts a right to be heard in the determination by the board of its status as a school of instruction in its chosen limited medical field.

R.C. § 4731.19 provides that:

'The state medical board shall determine the standing of the schools, colleges, institutions, or individuals giving instruction in limited branches of medicine or surgery. If there shall at any time be such schools, colleges, institutions, or individuals giving instruction in such limited branches, the applicant for such certificate shall, as a condition of admission to the examination, produce a diploma or certificate from such a school, college, institution, or individual in good standing as determined by the board, showing the completion of the required courses of instruction.

'The entrance examiner of the board shall determine the sufficiency of the preliminary education of applicants for such limited certificate as is provided in section 4731.09 of the Revised Code. * * *' (Emphasis added.)

In the absence of supplemental Code sections providing criteria upon which the State Medical Board is to base its decision of standing, one may reasonably conclude that such power is left to the discretion of the board. However, such discretion must be exercised cautiously to safeguard the rights of those concerned. Further, although R.C. § 4713.19 states that the entrance examiner of the board is charged with determining 'the sufficiency of the preliminary education of applicants for such limited certificate,' the Court of Appeals concluded: 'Apparently, the ultimate determination by respondent as to the standing of a school is made when a graduate of the school applies to take an examination for a certificate to practice a limited branch of medicine.'

When the State Medical Board took ex parte action by withdrawing 'approval' of The Great Lakes College, Inc., we feel that the State Medical Board exceeded its authority, acted arbitrarily and in violation of the constitutional rights of due process which must be afforded the relator, namely, notice and an opportunity to be heard.

Respondent is charged with the responsibility to determine the 'standing' of the relator. To arbitrarily withdraw apporval and deny entrance to an examination for licensure to all of relator's graduates is to deny fundamental due process to relator.

The second proposition of law advanced by appellant is that respondent's motion to dismiss should have been denied as relator's complaint in mandamus was not only in the form but also in the substance of a proceeding in mandamus and not that of a proceeding for...