Donaldson v. Missouri State Board of Registration for Healing Arts
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The Supreme Court affirmed the decision of the Administrative Hearing Commission (AHC) affirming its previous order emergently suspending Dr. Blake Donaldson's license and finding cause for discipline and the Missouri State Board of Registration for the Healing Arts' subsequent decision to discipline Donaldson's license, holding that there was no error.
From 1995 to 2017, the Board licensed Donaldson as an osteopathic physician and surgeon. In 2017, the Board filed a complaint alleging that Donaldson had engaged in several instances of sexual misconduct with a patient. The AHC, acting pursuant to the emergency procedures set forth in Mo. Rev. Stat. 334.102, found probable cause to believe Donaldson engaged in sexual contact with a patient and emergently suspended Donald's license. The AHC then affirmed its previous order. Thereafter, the Board revoked Donaldson's license and prohibited him from applying for reinstatement for seven years. The circuit court affirmed. The Supreme Court affirmed, holding that the AHC's decision was authorized by law and was not arbitrary and capricious.
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SUPREME COURT OF MISSOURI en banc BLAKE H. DONALDSON, D.O., Appellant, v. MISSOURI STATE BOARD OF REGISTRATION FOR THE HEALING ARTS, Respondent. ) ) ) ) ) ) ) ) ) ) ) Opinion issued December 22, 2020 No. SC98640 APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Patricia S. Joyce, Judge Dr. Blake Donaldson appeals the Administrative Hearing Commission's decision affirming its previous order emergently suspending his license and finding cause for discipline and the Missouri State Board of Registration for the Healing Arts' subsequent decision to discipline his license. This Court treats these decisions as one for purposes of judicial review. See § 621.145.1 Finding no error, this Court affirms. Factual Background and Procedural History From 1995 to December 2017, the Board of Registration for the Healing Arts ("Board") licensed Donaldson as an osteopathic physician and surgeon. At all times 1 All statutory references are to RSMo 2016 unless otherwise provided. relevant to this case, Donaldson owned and operated Primary Care North Kansas City, LLC, in Parkville. On November 27, 2017, the Board filed a Complaint and Motion for Emergency Suspension of Donaldson's license with the Administrative Hearing Commission ("AHC"). The Board alleged Donaldson had engaged in several instances of sexual misconduct with a patient ("Victim"). The Board also alleged Victim was a minor when some of the instances of sexual misconduct occurred. On December 1, 2017, the AHC, acting pursuant to the emergency procedures set forth in § 334.102, found probable cause to believe Donaldson engaged in sexual conduct with a patient, sexual misconduct with a minor, and "dangerous conduct." Accordingly, the AHC found cause to emergently suspend Donaldson's license, sustained the Board's motion, and suspended Donaldson's license pending the outcome of the case. On February 22-23, 2018, the AHC held a hearing. Donaldson and Victim, among others, testified. On March 15, 2018, the AHC issued its decision affirming its previous order emergently suspending Donaldson's license pursuant to § 334.102.1(1), § 334.102.1(2), and § 334.102.1(8) and finding Donaldson was subject to discipline pursuant to § 334.100.2(4), § 334.100.2(4)(i), and § 334.100.2(5). Donaldson filed a petition in the Cole County circuit court seeking injunctive and writ relief preventing the AHC from enforcing the emergency suspension. The circuit court dismissed the petition without prejudice, noting Donaldson failed to exhaust all administrative remedies and that a judicial review proceeding after final administrative decision was the proper avenue to address his claims. On August 3, 2018, the Board held a hearing to determine appropriate discipline. On September 25, 2018, the Board issued 2 its decision and disciplinary order revoking Donaldson's license and prohibiting him from applying for reinstatement for seven years. Thereafter, Donaldson filed a petition for judicial review in the Cole County circuit court. Donaldson challenged both the AHC's and Board's decisions and alleged procedural due process and equal protection violations. That court rejected Donaldson's constitutional challenges, determined there was sufficient evidence to support the AHC's and Board's decisions, and affirmed those decisions in all respects. Donaldson appealed, and the court of appeals determined Donaldson's constitutional claims invoked this Court's exclusive appellate jurisdiction under article V, § 3 of the Missouri Constitution. Correspondingly, the court of appeals transferred the case to this Court pursuant to article V, § 11 of the Missouri Constitution. Standard of Review This Court will affirm a decision of the AHC if it: (1) is authorized by law; (2) is supported by competent and substantial evidence on the whole record; (3) does not violate mandatory procedural safeguards; and (4) is not clearly contrary to the General Assembly's reasonable expectations. § 621.193, RSMo 2016; Mo. Const. art. V, § 18. This Court does not uphold a decision of the AHC if it is arbitrary, capricious, unreasonable, unlawful, or in excess of jurisdiction. [§ 536.140.2(6)]. Kansas City Chiefs Football Club, Inc. v. Dir. of Revenue, 602 S.W.3d 812, 817 (Mo. banc 2020) (case citations omitted) (internal quotation marks omitted). "This Court defers to the [AHC]'s findings of fact, but reviews the [AHC]'s determination of issues of law de novo." Miss Dianna's Sch. of Dance, Inc. v. Dir. of Revenue, 478 S.W.3d 405, 407 (Mo. banc 2016). In addition to findings of fact, this Court defers to the AHC's determinations 3 of credibility of witnesses and the weight given to conflicting evidence. O'Brien v. Dep't of Pub. Safety, 589 S.W.3d 560, 565 (Mo. banc 2019). Further, "this Court reviews the decision of the circuit court when the claim involves a question the AHC could not decide, i.e., a claim that a statute is unconstitutional." Planned Parenthood of the St. Louis Region v. Dep't of Soc. Servs., Div. of Med. Servs., 602 S.W.3d 201, 208 (Mo. banc 2020). This Court reviews the constitutional validity of a statute de novo. Id. at 206. Analysis Due Process Donaldson argues the AHC's decision to emergently suspend his license violated procedural due process for a variety of reasons. Both the United States and Missouri constitutions prohibit the taking of life, liberty, or property without due process of law. U.S. Const. amend. XIV, § 1; Mo. Const. art. I, § 10. It is well-established Donaldson has a constitutionally protected property interest in his medical license. Garozzo v. Mo. Dep't of Ins., Fin. Inst. & Prof'l Registration, Div. of Fin., 389 S.W.3d 660, 667 (Mo. banc 2013) (stating professional licenses are "property" for due process purposes); State ex rel. Hurwitz v. North, 264 S.W. 678, 681 (Mo. 1924) ("The license to . . . a physician . . . cannot be deprived without due process of law."). Procedural due process requires the government to provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" before depriving any person of a property interest. In re Foreclosures of Liens for Delinquent Land Taxes by Action in rem 4 Collector of Revenue, 334 S.W.3d 444, 447-48 (Mo. banc 2011) ("In re Foreclosures") (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Said differently, "[d]ue process contemplates the opportunity to be heard at a meaningful time and in a meaningful manner." Moore v. Bd. of Educ. of Fulton Pub. Sch. No. 58, 836 S.W.2d 943, 947 (Mo. banc 1992). Notice Was Constitutionally Sufficient First, Donaldson argues the AHC's decision to emergently suspend his license violated due process because the AHC suspended his license pursuant to a different statutory framework than what its notice ("Notice") specified. In essence, Donaldson is challenging the constitutional validity of the notice he received. The notice component of due process is not one size fits all; rather, it is a flexible concept that transforms depending on the facts, conditions, and circumstances of a given case. Blanchette v. Blanchette, 476 S.W.3d 273, 282 (Mo. banc 2015). The notice given need not explain every remedial avenue available to an interested party. Sneil, LLC v. Tybe Learning Ctr., Inc., 370 S.W.3d 562, 572 (Mo. banc 2012). Instead, "[n]otice required by the Due Process Clause simply must ensure that the opportunity for a hearing is meaningful, so that once informed of an administrative action, the person can turn to public sources to learn about the remedial procedures available to him." Carvalho v. Dir. of Revenue, 586 S.W.3d 262, 272 (Mo. banc 2019) (internal quotation marks omitted). Moreover, although the notice given cannot be misleading, this Court presumes an interested party is knowledgeable of the law. Id. 5 Donaldson posits the Notice was constitutionally insufficient because it informed him the procedures found in chapter 621, chapter 536, and 1 C.S.R. § 15-3.200-3.510 governed his case, when in fact, the AHC emergently suspended his license pursuant to § 334.102.1(1), § 334.102.1(2), and § 334.102.1(8). Additionally, Donaldson calls attention to the Notice's provision stating he had 30 days to file an answer or other responsive pleading to the Board's Complaint and Motion for Emergency Suspension ("Complaint and Motion"). In his view, this provision misled him from filing any evidence with the AHC prior to its emergency suspension of his license. The opening paragraph of the Notice was as follows: [Board] has filed a complaint against you before this Commission. A copy of that complaint is attached. This complaint charges that you have violated certain statutes or regulations governing your licensed profession. If this Commission finds the charges to be true, [Board] could revoke or otherwise discipline your license. (Emphasis added). Appended to the Notice was the Board's Complaint and Motion, which requested discipline of Donaldson's license via two different methods: (1) regular discipline pursuant to § 334.100.2(4)(i) and § 334.100.2(5); and (2) emergency suspension of his license pursuant to § 334.102.1(1), § 334.102.1(2), and § 334.102.1(8). Also included in the Complaint and Motion was the plain text of the pertinent portions of § 334.100 and § 334.102 and factual allegations underlying the claims of misconduct. Taken together, the Notice and the Complaint and Motion certainly apprised Donaldson of the pendency of the administrative actions against him, including the statutory framework whereby the AHC could emergently suspend his license. In re Foreclosures, 334 S.W.3d at 447-48. 6 Donaldson's auxiliary argument that the Notice was insufficient because it informed him he had 30 days to respond to the Board's Complaint and, therefore, he failed to produce affidavits and certified court records before the AHC made its probable cause determination, is equally unavailing. The Notice and Complaint and Motion adequately informed Donaldson that: (1) the Board sought to discipline his license pursuant to § 334.100; (2) the Board sought an emergency suspension of his license pursuant to § 334.102, and (3) the procedures set forth in chapter 621, chapter 536, and 1 C.S.R. § 15- 3.200-3.510 governed his case. Once Donaldson received notice of the administrative actions against him—as well as the statutory bases of discipline and the statutory and regulatory procedures governing said administrative actions—he could "turn to public sources to learn about the remedial procedures available to him." Carvalho, 586 S.W.3d at 272. The statutes cited in the Notice and Complaint and Motion made it clear to Donaldson that he may have filed "affidavits and certified court records for consideration by the [AHC prior to its probable cause determination]," § 334.102.2, and that "[w]ithin five days of the board's filing of the complaint the [AHC] shall review the information submitted by the board and the licensee and shall determine based on that information if probable cause exists [to emergently suspend his license.]" § 334.102.3 (emphasis added). Additionally, a review of the statutes and regulations cited in the Notice made it clear that the 30-day time period to file a responsive pleading referred to the Board's Complaint only, not the Motion for Emergency Suspension. § 334.100.2; § 334.102.2; 1 C.S.R. § 15-3.380. 7 In sum, the Notice was not required to inform Donaldson of every avenue of relief available to him. It adequately informed him of the administrative action against him as well as all relevant statutes and regulations. Because this is all due process requires, the notice given was constitutionally sound. 1 C.S.R. § 15-3.446 Does Not Apply Next, Donaldson argues the AHC's decision emergently suspending his license violated due process because the probable cause determination failed to comply with 1 C.S.R. § 15-3.446. That regulation, titled "Decision on the Complaint without a Hearing, provides in pertinent part, "[d]ecision without hearing means a disposition, or recommended disposition, of the complaint on the merits. It includes a decision on the pleadings, summary decision, and consent order in cases under section 621.045, RSMo." 1 C.S.R. § 15-3.446(1) (emphasis added). However, the AHC cannot render a decision on the complaint without a hearing unless a party files a motion requesting that disposition. 1 C.S.R. § 15-3.446(2). Donaldson admits neither party filed a motion pursuant to 1 C.S.R. § 15-3.446 with the AHC. Furthermore, Donaldson fails to understand that the AHC's decision to emergently suspend his license was not a disposition of the Board's Complaint on the merits. In deciding whether to emergently suspend a license, the AHC does not evaluate the merits of the Board's complaint. Rather, the AHC merely "review[s] the information submitted by the board and the licensee and . . . determine[s] based on that information if probable cause exists pursuant to [§ 334.102.1.]" § 334.102.3. 8 Because 1 C.S.R. § 15- 3.446 is wholly inapplicable in this situation, the AHC did not violate due process in not considering that regulation in emergently suspending Donaldson's license. Section 334.102 Is Not Facially Unconstitutional Donaldson contends § 334.102 violates due process because it prevented him from seeking judicial review of the AHC's decision emergently suspending his license until after the Board imposed final discipline. In other words, Donaldson argues § 334.102 violates due process because it provides no mechanism to achieve immediate judicial review of the AHC's decision emergently suspending his license; therefore, he is not being heard at a reasonable time and in a reasonable manner. This argument is incompatible with the general rule that a party must exhaust all administrative remedies before the party may seek judicial review. Section 621.145 provides: Except as otherwise provided by law, all final decisions of the administrative hearing commission shall be subject to judicial review as provided in and subject to the provisions of sections 536.100 to 536.140, except that in cases where a disciplinary order may be entered by the agency, no decision of the administrative hearing commission shall be deemed final until such order is entered. For purposes of review, the action of the commission and the order, if any, of the agency shall be treated as one decision. The right to judicial review as provided herein shall also be available to administrative agencies aggrieved by a final decision of the administrative hearing commission. (Emphasis added); see also § 536.100 ("Any person who has exhausted all administrative remedies provided by law . . . shall be entitled to judicial review thereof."). 2 2 This Court further elaborated on exhaustion of administrative remedies in Farm Bureau Town & Country Ins. Co. of Missouri v. Angoff: 9 In a physician discipline case in which the Board seeks an emergency suspension of a license, the following administrative procedures take place. The Board applies to the AHC for an emergency suspension or restriction of a license for cause. § 334.102.1. Within five days of the Board's filing, the AHC reviews the information filed by both parties, determines whether probable cause exists pursuant to § 334.102.1, and issues its finding of facts and conclusions of law. § 334.102.3. If the AHC determines probable cause is present, it enters the order requested by the Board. Id. Within 45 days of the Board's filing of its complaint, 3 the AHC holds a hearing to determine if cause for discipline exists. § 334.102.4(1). If no cause for discipline exists, the AHC issues findings of fact, conclusions of law, and an order terminating the emergency suspension. § 334.102.4(2). If cause for discipline exists, the AHC issues findings of fact, conclusions of law, and an order keeping the emergency suspension in place pending a disciplinary hearing by the Board. § 334.102.4(3). The Board holds a The exhaustion of administrative remedies doctrine is rooted in sound policy, as well as in both the state constitution and statutes. Only "final decisions, findings, rules and orders" of an administrative agency are subject to review as provided by law. Mo. Const. art. V, § 18. The relevant statute, § 536.100, provides for judicial review only by a "person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case." The policy reasons for the exhaustion doctrine are clear. 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. 909 S.W.2d 348, 352 (Mo. banc 1995) (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975)). 3 "The administrative hearing commission may grant a request for a continuance, but shall in any event hold the hearing within one hundred twenty days of the board's initial filing." § 334.102.4(1). 10 hearing and imposes discipline. Id. Only after the Board imposes discipline are the AHC's and Board's decisions eligible for judicial review. § 621.145. Simply put, the AHC's decision to emergently suspend Donaldson's license is not a final decision subject to judicial review. Donaldson's argument that the statute prevents him from having a meaningful hearing—because there is no prompt judicial review mechanism—ignores that the same statute entitles him to a prompt hearing before the AHC after it makes its probable cause determination and possibly another evidentiary/disciplinary hearing before the Board if the AHC determines cause for discipline is present. Donaldson fails to cite to any case law suggesting prompt judicial review is required after the AHC makes its probable cause determination. Moreover, Donaldson fails to provide this Court with any justification for disrupting the wellestablished rule that he must exhaust all administrative remedies before seeking judicial review. Section 334.102 is facially constitutional. In his final constitutional argument, Donaldson convolutedly argues § 334.102 is facially unconstitutional because it creates an arbitrary 120-day window for discovery and lacks an avenue for him to submit additional and exculpatory evidence. "In order to mount a facial challenge to a statute, the challenger must establish that no set of circumstances exists under which the [statute] would be valid." Artman v. State Bd. of Registration for the Healing Arts, 918 S.W.2d 247, 251 (Mo. banc 1996) (internal quotation marks omitted). It is not enough to show that, under some conceivable circumstances, "the statute might operate unconstitutionally." Id. 11 Donaldson does not attempt to make this requisite showing. Instead, Donaldson challenges, inter alia, the fact that the Board handed over its investigation file to him 40 days before the AHC hearing, that the AHC denied several of his continuance requests to engage in additional discovery, and that the AHC declined to accept additional evidence months after it issued its decision affirming its emergency suspension and finding cause for discipline. These arguments do not show that "no set of circumstances exists under which [§ 334.102] would be valid." See id. Because Donaldson does not make this showing, this argument fails. Furthermore, Donaldson's argument that § 334.102's "120-day discovery window" does not provide him with adequate time to conduct discovery fails. Donaldson ignores the fact that the statute requires the AHC to hold a hearing to determine if cause for discipline exists within a maximum of 120 days of the Board's filing of its complaint. § 334.102.4(1). While this is a relatively short time period, it is adequate considering the AHC's § 334.102.4(1) hearing operates as a constitutionally required post-deprivation hearing. The AHC's Decision Was Not Arbitrary and Capricious and/or Unauthorized by Law Conduct Need Not Be Presently Occurring for Board to Seek Emergency Suspension Donaldson posits the AHC's decision emergently suspending his license was arbitrary and capricious because there was no active emergency to which § 334.102 was applicable. In interpreting a statute, this Court applies the language as written by the 12 General Assembly. Lin v. Ellis, 594 S.W.3d 238, 244 (Mo. banc 2020). It is outside this Court's province to add to that language. Id. In pertinent part, § 334.102.1 provides: The board may apply to the administrative hearing commission for an emergency suspension or restriction of a licensee for the following causes: (1) Engaging in sexual conduct, as defined in section 566.010, with a patient who is not the licensee's spouse, regardless of whether the patient consented; (2) Engaging in sexual misconduct with a minor or person the licensee believes to be a minor. "Sexual misconduct" means any conduct of a sexual nature which would be illegal under state or federal law; …. (8) Any conduct for which the board may discipline that constitutes a serious danger to the health, safety, or welfare of a patient or the public. Contrary to Donaldson's position, § 334.102 does not require the "cause" for emergent suspension to be presently occurring for the Board to seek an emergency suspension of his license. The only prerequisite is the Board's belief that the licensee has engaged in one of the prohibited activities listed in the statute. This Court declines to adopt Donaldson's interpretation of § 334.102 because it would have this Court add "presently occurring" language to the statute. Lin, 594 S.W.3d at 244; see also Frye v. Levy, 440 S.W.3d 405, 424 (Mo. banc 2014) ("This Court will not interpret a statute as a party wishes it were written."). Hence, this argument fails, and the AHC's decision was not arbitrary and capricious for this reason. 13 The AHC Did Not Err in Drawing Adverse Inference from Donaldson's Invocation of His Fifth Amendment Rights Donaldson alleges the AHC erred in drawing an adverse inference from his invocation of his Fifth Amendment right to remain silent at the hearing before the AHC. More exactly, Donaldson argues the AHC's finding of an adverse inference was unauthorized by law because the AHC failed to apply the test established by this Court in State ex rel. Pulliam v. Swink, 514 S.W.2d 559, 561 (Mo. banc 1974). Before addressing Donaldson's Pulliam argument, it is undisputed that Donaldson may invoke his Fifth Amendment rights during a civil proceeding. State ex. rel Nothum v. Walsh, 380 S.W.3d 557, 562 (Mo. banc 2012); In re West, 152 S.W.2d 69, 70 (Mo. banc 1941). However, it is equally as undisputed that the AHC could draw an adverse inference from Donaldson's invocation of his Fifth Amendment rights. Allen v. Bryers, 512 S.W.3d 17, 36 (Mo. banc 2016); Baxter v. Palmigiano, 425 U.S. 308, 320 (1976). 4 Therefore, the only issue is whether the AHC erred in not employing the "test" set forth in Pulliam. In Pulliam, the plaintiff brought suit for the wrongful death of her husband in a car accident. Pulliam, the defendant, filed an answer but did not assert any counterclaims or affirmative defenses. The plaintiff requested to depose Pulliam and, at his deposition, 4 The court of appeals explained the rationale behind this rule in Sparks v. Sparks: [F]undamental fairness requires that a plaintiff be afforded some remedy lest a defendant defeat the claim by concealment. The balance inherent in our adversary system is distorted if one party to a civil action is permitted by invocation of the privilege against self-incrimination to unilaterally control full presentation to the fact finder of all of the evidence pertaining to all of the issues. Thus, whether asserted by a plaintiff or a defendant, invocation of the privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence. 768 S.W.2d 563, 567 (Mo. App. 1989). 14 Pulliam asserted his Fifth Amendment privilege. Subsequently, the plaintiff moved to strike Pulliam's answer and the circuit court sustained the motion. Pulliam sought a writ of prohibition from this Court. Before performing any analysis, this Court noted the narrow issue presented in the case: whether the circuit court had the power to strike the defendant's answer upon his refusal to testify on grounds of self-incrimination. In addressing the narrow issue, this Court looked to its precedent and determined the circuit court would exceed its jurisdiction if it struck Pulliam's answer because: "[Pulliam] has sought no affirmative relief; he is in court involuntarily. He raised his constitutional privilege immediately; his assertion of the privilege was in good faith; he has not been contumacious." Ultimately, this Court made its preliminary writ permanent. Donaldson argues the AHC was required to weigh these factors before drawing an adverse inference from his Fifth Amendment invocation. Donaldson is incorrect because the Pulliam factors apply only in the narrow situation in which the circuit court strikes a defendant's answer after the defendant invokes his or her Fifth Amendment privilege. Subsequent appellate cases have applied the Pulliam factors in this context only; not in every situation a civil litigant invokes his or her Fifth Amendment privilege. Velda City v. Williams, 41 S.W.3d 915, 917-18 (Mo. App. 2001) (discussing Pulliam in case in which circuit court sua sponte struck defendant's affirmative defenses after defendant invoked Fifth Amendment privilege); State ex rel. Webster v. Ames, 791 S.W.2d 916, 923 (Mo. App. 1990) (discussing Pulliam in case in which circuit court struck defendant's answer 15 after invoking Fifth Amendment privilege). The AHC's decision is not unauthorized by law because Pulliam is inapplicable to the instant case. This Court Defers to the AHC's Credibility Determinations Next, Donaldson advances two interrelated points. Boiled down, Donaldson argues the AHC's decision was not based on competent and substantial evidence because the decision relied on Victim's testimony, which, Donaldson argues, was untruthful, uncorroborated, and riddled with inconsistencies. In its decision affirming the emergency suspension and finding cause for discipline, the AHC addressed the alleged inconsistencies in Victim's testimony and held: While we have considered all of these discrepancies [in Victim's testimony], we find [Victim] to be a credible witness, as we are required to do. Despite [Victim's] inconsistent testimony, Donaldson failed to provide evidence to refute the salient portion of [Victim's] testimony, such as [Victim's] assertion that he engaged in sexual activity with Donaldson[.] Credibility determinations are a function of administrative tribunals. Prokopf v. Whaley, 592 S.W.2d 819, 823 (Mo. banc 1980). As such, those determinations, once made by the AHC and expressed in its decision, are binding on this Court. O'Brien, 589 S.W.3d at 565. Because the AHC determined Victim was a credible witness and because Victim's testimony confirmed a sexual relationship between himself and Donaldson, including when Victim was a minor, the AHC's decision was based on competent and substantial evidence. 16 Section 536.083 Did Not Disqualify Commissioner Dandamudi from Presiding over the Subsequent AHC Hearing In his last argument, Donaldson posits the AHC erred in allowing Commissioner Sreenivasa Rao Dandamudi to preside over the AHC's subsequent hearing because Dandamudi presided over the AHC's original probable cause determination. Section 536.083 provides: Notwithstanding any other provision of law to the contrary, in any administrative hearing conducted under the procedures established in this chapter, and in any other administrative hearing conducted under authority granted any state agency, no person who acted as a hearing officer or who otherwise conducted the first administrative hearing involving any single issue shall conduct any subsequent administrative rehearing or appeal involving the same issue and same parties. (Emphasis added). Therefore, the relevant question becomes whether the AHC's probable cause determination was the "first administrative hearing" for § 536.083's purposes. This Court has determined a hearing in this context is "a proceeding at which a measure of procedural formality is followed." City of Valley Park v. Armstrong, 273 S.W.3d 504, 507 (Mo. banc 2009) (internal quotation marks omitted). 5 Said differently, the term "hearing" presupposes a proceeding before a competent tribunal for the trial of issues [b]etween adversary parties, the presentation and consideration of proofs and arguments, and determinative action by the tribunal with respect to the issues; it also requires that the parties be apprised of all evidence offered or considered, with the opportunity to test, examine, explain, or refute such evidence; it contemplates an opportunity to be heard, not only the privilege to be present when the matter is being considered, but the right to present 5 "Procedural formalities" include notice of the issues, oral evidence taken upon oath or affirmation, the cross-examination of witnesses, the making of a record, adherence to evidentiary rules, and written decisions including findings of fact and conclusions of law. Valley Park, 273 S.W.3d at 507. 17 one's contentions and to support the same by proof and argument. . . . Thus, there is no "hearing" when the party does not know what evidence is offered or considered, and is not given an opportunity to test, explain, or refute. City of Richmond Heights v. Bd. of Equalization of St. Louis Cnty., 586 S.W.2d 338, 342 (Mo. banc 1979) (second alteration in original) (quoting 39A C.J.S. Hear, p. 632-33) (emphasis added). In determining whether a proceeding is a "first administrative hearing," this Court consults the statute authorizing the proceeding. Valley Park, 273 S.W.3d at 507. The statute authorizing the probable cause determination, § 334.102.3, provides in pertinent part: Within five days of the board's filing of the complaint, the administrative hearing commission shall review the information submitted by the board and the licensee and shall determine based on that information if probable cause exists pursuant to subsection 1 of this section and shall issue its findings of fact and conclusions of law. Section 334.102.3 does not contemplate a "hearing" as this Court defined that term in Richmond Heights. A § 334.102.3 probable cause determination simply requires the AHC to compare the materials (i.e. affidavits and certified court records) submitted by the Board and licensee, and then determine if probable cause exists to emergently suspend the licensee's license. This statute does not contemplate a full adversarial hearing with live testimony, cross-examination, or any other mechanism to test, refute, or explain the other party's evidence. Additionally, the statute neither contemplates either party being present for this determination nor requires the parties be apprised of all evidence offered or considered. 18 Because the probable cause determination does not have the characteristics of a formal hearing as this Court has described them, it was not the "first administrative hearing" for § 536.083's purposes. Therefore, the statute is inapplicable here and does not disqualify Commissioner Dandamudi from presiding over the AHC's subsequent hearing. Conclusion This Court affirms the AHC's and Board's decisions suspending Donaldson's license. __________________________ Zel M. Fischer, Judge All concur. 19
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