Williston v. Vasterling

• Decision Date: 24 October 2017
• Docket Number: WD 80137
• Citation: 536 S.W.3d 321
• Parties: Keith WILLISTON, Appellant, v. Gail VASTERLING, et al., Respondents.
• Court: Missouri Court of Appeals

536 S.W.3d 321

Keith WILLISTON, Appellant,

v.Gail VASTERLING, et al., Respondents.

WD 80137

Missouri Court of Appeals, Western District.

OPINION FILED: October 24, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied November 16, 2017

Application for Transfer Denied January 23, 2018

Keith Williston, Independence, MO, appellant pro se.

Emily A. Dodge, Jefferson City, MO, for respondents State Defendants.

Lowell D. Pearson, for respondents Mo. Association of Osteopathic and Mo. State Medical Association.

Before Division One: Cynthia L. Martin, Presiding Judge, James E. Welsh, Judge and Karen King Mitchell, Judge

Cynthia L. Martin, Judge

Keith Williston ("Williston") appeals from the trial court's dismissal with prejudice of his petition against numerous private and state entities and individuals. Williston's petition sought damages, and declaratory and injunctive relief, based on the alleged impact of statutes and regulations on Williston's ability to operate a birthing center. Because Williston's petition was properly dismissed, we affirm the trial court's judgment.

Factual and Procedural Background¹

Prior to the commencement of the litigation which gives rise to this appeal, Williston owned and operated A Mother's Love Birthing Center, LLC ("AML") in Independence, Missouri. Birthing centers are required to be licensed pursuant to section 197.205² and pursuant to promulgated regulations, specifically 19 CSR 30-30.010 and 19 CSR 30-30.080.

In June 2009, Williston, directly or on behalf of AML, filed a petition with the Department of Health and Senior Services ("DHSS") requesting that DHSS amend its regulations concerning birthing centers. Williston objected to certain facility requirements that DHSS regulations imposed on birthing centers. Williston also objected to DHSS regulations which required a birthing center to have a physician on staff, and which required nurses and midwives working in a birthing center to provide services pursuant to a collaborative practice agreement with a physician. In March 2010, DHSS denied Williston's petition. In September 2010, the Small Business Regulatory Fairness Board requested DHSS to work with birthing centers to determine whether its birthing center regulations were compliant with state statutes. At about the same time, Williston officially filed an application with DHSS seeking a birthing center license for AML, including requests for variances from the regulatory requirements for birthing centers.

In December 2010, DHSS again advised Williston that it would not amend its birthing center regulations as requested. DHSS also advised Williston that AML remained subject to the existing licensing requirements for birthing centers, and declined to grant AML any variance from the licensing requirements. DHSS did not outright deny AML's pending license application but encouraged Williston to continue to work with DHSS to bring AML into compliance with the regulations. AML was operating without a license during this period of time.

In May 2012, Williston requested a final determination from DHSS on AML's license application. On June 11, 2012, DHSS advised Williston it no longer considered AML's license application to be active.

In August 2012, Williston appealed to the Administrative Hearing Commission ("AHC") in his own name. The AHC later changed the named petitioner in the case from Williston to AML pursuant to a joint request from the parties. Williston, and later AML, challenged DHSS's decision not to amend its regulations. However, most of the testimony and evidence presented during the AHC hearing concerned DHSS's refusal to grant AML variances from the regulatory requirements. The AHC issued a decision concluding that AML was not entitled to most of the variances Williston had requested. The AHC denied AML's application for licensure as a birthing center, finding that AML had failed to establish that it was qualified as a birthing center. The AHC further concluded that it had no authority to amend DHSS's regulations or to order DHSS to do so.

On December 2013, AML filed a petition for judicial review with the Circuit Court of Cole County, which upheld the AHC's decision in all respects. After the trial court issued its judgment, but within the thirty-day period during which the trial court maintained control over its judgment, Williston filed a motion to intervene, claiming that he retained an interest in the proceeding and should be added as a party because AML had filed a notice to wind up its affairs. More than thirty days after the trial court's judgment, the trial court denied Williston's motion to intervene. Williston (and not AML) then filed a notice of appeal, challenging both the trial court's denial of his motion to intervene and the trial court's judgment affirming the AHC's decision. We dismissed Williston's appeal in Williston v. Missouri Department of Health & Senior Services , 461 S.W.3d 867 (Mo. App. W.D. 2015). We found that the trial court's order denying Williston's motion to intervene was void, having been entered after the trial court lost control over its judgment. Id. at 870. We also found that Williston's notice of appeal challenging the merits of the judgment affirming the AHC decision was not timely, as the motion to intervene was not an authorized post-trial motion which extended the time to file an appeal.³ Id.

On August 21, 2015, Williston filed a petition with the Board of Nursing. Williston asked the Board of Nursing to amend its regulations concerning the criteria necessary to practice as an advanced practice registered nurse ("APRN"),⁴ and its regulations concerning collaborative practice agreements.⁵ Williston's petition also asked the Board of Nursing to promulgate a rule defining the scope of practice for APRNs to limit the need for collaborative practice agreements. The Board of Nursing conducted a hearing on Williston's petition in September 2015 and denied the petition on the same day.⁶ Williston did not seek administrative review of the Board of Nursing's decision.

On or about November 10, 2015, Williston filed a petition in the Circuit Court of Jackson County, Missouri, which named a plethora of defendants, including DHSS, its current and former director, and its deputy director; the Board of Nursing and its appointed members; the Missouri Board of Registration for the Healing Arts and its appointed members; former Governor Jeremiah Nixon ("former Governor Nixon"); former AHC Commissioner Marvin Teer ("former Commissioner Teer"); the Missouri State Medical Association ("MSMA"); the Missouri Association of Osteopathic Physicians and Surgeons ("MAOPS"); the American College of Obstetricians and Gynecologists ("ACOG"); and physicians licensed in Missouri who are members of MSMA, MAOPS, ACOG, or any combination of those three organizations.

On February 21, 2016, Williston registered the fictitious name "A Mother's Love Birth Center" with the Missouri Secretary of State. The next day, February 22, 2016, Williston filed another application with DHSS for a license to operate a birthing center. On February 23, 2016, Williston filed an amended petition ("First Amended Petition") in the Jackson County Circuit Court proceedings. Williston alleged in the First Amended Petition that he "anticipates that DHSS will deny his [pending license] application since Williston will not comply with regulations that DHSS insists are valid, and Williston insists are not." Williston's lawsuit was transferred to the Cole County Circuit Court in March 2016.⁷

In his ten-count First Amended Petition, Williston sought damages for alleged conspiracies, and declaratory and injunctive relief. Broadly stated, Williston complained that regulations promulgated by DHSS, the Board of Nursing, and the Board of Registration for the Healing Arts improperly impose limits on birthing centers and on APRNs' scope of practice, and that the defendants conspired to promulgate, enforce, and refuse to amend regulations in order to limit Williston's ability to operating a birthing center in the manner he believes appropriate. Williston believes that he should be able to operate a birthing center without hiring a physician to serve on staff and without requiring APRNs to have a collaborative practice agreement with a physician.

Specifically, Count I asserted that the Board of Nursing, the Board of Registration for the Healing Arts, MSMA, MAOPS, ACOG, and the members of MSMA, MAOPS, and ACOG engaged in a conspiracy to violate Williston's right to free speech and association. Count II alleged that DHSS, former Governor Nixon, the former director of DHSS, the deputy director of DHSS, and former Commissioner Teer conspired to interfere with Williston's political speech before DHSS. Count III asked the trial court to declare that the Board of Nursing's and Board of Registration for the Healing Arts' policies which require an APRN to secure a collaborative practice agreement with a physician are void because the policies were not promulgated as rules. Count IV asked the trial court to declare that diagnosing and prescribing fit within the statutory definition of "professional nursing." Count V asked the trial court to declare that the Board of Nursing's and Board of Registration for the Healing Arts' policies requiring an APRN to obtain a collaborative practice agreement with a physician are void. Count VI asked the trial court to declare that the Board of Nursing and its members have a ministerial duty to license and regulate APRNs by promulgating a rule which clarifies the scope of "professional nursing." Count VII asked the trial court to declare that statutes which delegate the regulation of nurses to physicians are unconstitutional, and to enjoin the Board of Nursing and its members, the Board of Registration for the Healing Arts and its members, DHSS, the Director of DHSS, MSMA, MAOPS, and members of MSMA and MAOPS from delegating the regulation of nurses to physicians. Count VIII asked...