STATE EX REL. STATE BD., ETC. v. NAIFEH

STATE EX REL. STATE BD., ETC. v. NAIFEH
1979 OK 105
598 P.2d 225
Case Number: 53615
Decided: 07/10/1979
Supreme Court of Oklahoma

STATE OF OKLAHOMA, EX REL. STATE BOARD OF MEDICAL EXAMINERS, PETITIONER,
v.
THE HONORABLE RAYMOND NAIFEH, JUDGE OF THE DISTRICT COURT OF OKLAHOMA
COUNTY, RESPONDENT.

Original Proceeding in the Supreme Court.

¶0 Application by the Attorney General of the State of Oklahoma for Writ of Prohibition against the Honorable Raymond Naifeh, Judge of the District Court of Oklahoma County, Oklahoma.

JURISDICTION ASSUMED: WRIT GRANTED.

Jan Eric Cartwright, Atty. Gen., John Gregory Thomas, Asst. Atty. Gen., Oklahoma City, for petitioner.

James H. Harrod, Edmond, for respondent, David Lee Trent, M.D.

MEMORANDUM OPINION BY ORDER

DOOLIN, Justice:

¶1 Upon application and petition to assume original jurisdiction and to prohibit the respondent judge from further proceedings in an attempted appeal of a decision of the Oklahoma Board of Medical Examiners to the District Court of Oklahoma County; jurisdiction assumed, writ granted.

¶2 This Court is of the opinion that by virtue of 59 O.S. 1971 § 513 and our holdings thereunder, Davis v. State Board of Medical Examiners, 181 Okl. 385, 74 P.2d 610 (1937) and Choate v. State, 204 Okl. 596, 232 P.2d 634 (1951), all appeals from a decision of the Oklahoma Board of Medical Examiners lie exclusively to the Supreme Court of Oklahoma.

¶3 LET THE WRIT ISSUE.

¶4 LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, HODGES, BARNES and HARGRAVE, JJ., concur.

¶5 SIMMS and OPALA, JJ., dissent.

OPALA, Justice, dissenting:

¶1 The first-impression issue before us is whether the provisions of 59 O.S. 1971 § 513 afford a constitutionally permissible barrier to a medical practitioner's [physician's] district court appeal for review, on the record, of an order by the Board of Medical Examiners [Board] which placed him on a two year probation for "indiscriminate and excessive" prescribing of controlled dangerous substances. My resolution of this issue must be by a negative answer. Section 513, insofar as it appears to vest in this court, to the exclusion of the district court, reviewing power over the Board's decisions, clearly deprives a physician of due process under Art. 2, § 7 , Okl.Con.

¶2 The history of § 513 parallels, if not mirrors, this century's growth of our administrative process. Before its last amendment in 1935

¶3 Since 1935 persons licensed in medicine as physicians or surgeons have been the only group of health-related practitioners whose disciplinary proceedings are appealable directly to the Supreme Court.

¶4 Our due process clause in Art. 2, § 7 has a definitional range that is coextensive with its federal counterpart.

¶5 The capriciousness of the statutory barrier here in question is thrown sharply into focus by the fact that full benefit of two appeals [first to the district court and thence here], as provided by the Adm.Proc. Act,

¶6 Policy considerations which led the legislature onto the course of allowing a direct Supreme Court appeal for medical and surgical practitioners are now somewhat obscured by the fog of antiquity. However legal and valid they may have been in 1935, I cannot today isolate a single important governmental objective the discriminatory provisions under consideration before us might legitimately serve, which, when tested by the current standards of due process, would enable § 513 to pass constitutional muster.

¶7 I would hold that the regime of judicial review provided by the Adm.Proc. Act is constitutionally available and applicable to practitioners in medicine and surgery.

¶8 I am authorized to state that Simms, J., concurs in these views.

[598 P.2d 227]

APPENDIX

Licensed practitioners of the healing arts and health-related fields [all statutory citations are to Title 59, Oklahoma Statutes, Professions and Occupations]. ----------------------------------------------------------------------------

Profession & Regulatory | Appeals Provisions

Provisions | ---------------------------------------------------------------------------- I. HEALING ARTS - [O.S. 1971 § 701 et seq.]

1. Chiropody [Podiatry] OAPA seems to govern - no [O.S. 1971] § 136 et seq. specific appeal provision

2. Chiropractic [O.S.Supp. 1972] § 164(d) [O.S. 1971] § 161 et seq. [O.S. 1971] § 164(e) Direct appeal

3. Dentistry & Dental Hygiene [O.S. 1971] § 328.43 [O.S. 1971] § 328.1 et seq. appeal since 1970

4. Medicine and Surgery [O.S. 1971] § 513 [O.S. 1971] § 481 et seq. Direct appeal

5. Optometry OAPA seems to govern - [O.S. 1971] § 581 et seq. no specific appeal provision

6. Osteopathy [O.S.Supp. 1978] § 637 [O.S. 1971] § 621 et seq. Direct appeal

7. Physicians Assistant Presumably appellate [O.S.Supp. 1972] § 519 et provisions governed by OAPA seq.

II. HEALTH-RELATED FIELDS

1. Barbers [O.S. 1971] § 99(a) [O.S. 1971] § 61 et seq. Direct appeal

2. Cosmetology OAPA seems to govern - no [O.S.Supp. 1978] § 199.1 specific appeal provision et seq.

3. Electrology OAPA seems to govern - [O.S. 1971] § 801 et seq. appeal provision

4. Embalmers [O.S. 1971] § 396.13 [O.S.Supp. 1978] § 396 Direct appeal et seq.

5. Hearing Aids [dealers and [O.S.Supp. 1973] § 1566A - fitters] [O.S.Supp. 1973] § 1551 license revocation appears et seq. to be governed specifically by OAPA

6. Nurses [O.S. 1971] § 567.10 [O.S. 1971] § 567.1 et seq. Direct appeal

7. Pharmacy [O.S.Supp. 1971] § 353.26 [O.S.Supp. 1973] § 353.1 Direct appeal et seq.

8. Physical Therapy OAPA seems to govern - no [O.S. 1971] § 887.1 et seq. specific appeal provision

9. Psychology [O.S.Supp. 1974] § 1370(e) [O.S. 1971] § 1351 et seq. Direct appeal

10. Sanitarians OAPA seems to govern - no [O.S.Supp. 1975] § 901 specific appeal provision et seq.

11. Speech Pathology and Audiology [O.S.Supp. 1973] § 1619D. [O.S.Supp. 1973] § 1601 Direct appeal et seq.

12. Veterinarians [O.S. 1971] § 698.14 [O.S. 1971] § 698.1 et seq. Direct appeal

13. Water & Sewage Works [O.S. 1971] § 1111C [O.S. 1971] § 1101 et seq. Direct appeal

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Profession & Regulatory | Appeals To

Provisions | ---------------------------------------------------------------------------- I. HEALING ARTS - [O.S. 1971 § 701 et seq.]

1. Chiropody [Podiatry] Dist. Ct. [O.S. 1971] § 136 et seq.

2. Chiropractic Dist. Ct. [O.S. 1971] § 161 et seq. Direct appeal

3. Dentistry & Dental Hygiene Dist. Ct. [O.S. 1971] § 328.1 et seq.

4. Medicine and Surgery Sup. Ct. [O.S. 1971] § 481 et seq.

5. Optometry Dist. Ct. [O.S. 1971] § 581 et seq.

6. Osteopathy Dist. Ct. [O.S. 1971] § 621 et seq.

7. Physicians Assistant Dist. Ct. [O.S.Supp. 1972] § 519 et seq.

II. HEALTH-RELATED FIELDS

1. Barbers Dist. Ct. [O.S. 1971] § 61 et seq.

2. Cosmetology Dist. Ct. [O.S.Supp. 1978] § 199.1 et seq.

3. Electrology Dist. Ct. [O.S. 1971] § 801 et seq.

4. Embalmers Dist. Ct. [O.S.Supp. 1978] § 396 et seq.

5. Hearing Aids [dealers and Dist. Ct. fitters] [O.S.Supp. 1973] § 1551 et seq.

6. Nurses Dist. Ct. [O.S. 1971] § 567.1 et seq.

7. Pharmacy Dist. Ct. [O.S.Supp. 1973] § 353.1 et seq.

8. Physical Therapy Dist. Ct. [O.S. 1971] § 887.1 et seq.

9. Psychology Dist. Ct. [O.S. 1971] § 1351 et seq.

10. Sanitarians Dist. Ct. [O.S.Supp. 1975] § 901 et seq.

11. Speech Pathology and Audiology Dist. Ct. [O.S.Supp. 1973] § 1601

et seq.

[598 P.2d 228]

12. Veterinarians Dist. Ct. [O.S. 1971] § 698.1 et seq.

13. Water & Sewage Works Dist. Ct. [O.S. 1971] § 1101 et seq.

Footnotes:

1 O.S.L. 1935, Ch. 24, Art. 7, pgs. 56-57.

2 Freeman v. State Board of Medical Examiners, 54 Okl. 531, 154 P. 56, 57 [1916]; Oliver v. State, 122 Okl. 66, 251 P. 31 [1926]; Davis v. State Board of Medical Examiners, 181 Okl. 385, 74 P.2d 610, 613 [1937].

3 In re Initiative Petition No. 23, State Question 38, 35 Okl. 49, 127 P. 862, 863-864 [1912].

4 This holding is contained in McKeever Drilling Co. v. Egbert, 170 Okl. 259, 40 P.2d 32, 36 [1935]. The 1935 amendment became effective May 13, 1935, O.S.L., Ch. 24, Art. 7, pgs. 56-57.

5 75 O.S. 1971 § 301 et seq.

6 75 O.S. 1971 §§ 318 (2), 321, 323; Abel v. Okla. Real Estate Commission, Okl., 453 P.2d 1007 [1969]; Robbins v. Okla. Alcoholic Beverage Con. Bd., Okl., 461 P.2d 610 [1969]; Trask v. Johnson, Okl., 452 P.2d 575 [1969]; Frank v. Okla. Real Estate Commission, Okl., 512 P.2d 190 [1973]; Baggett v. Webb, Okl., 557 P.2d 433 [1976].

7 McKeever Drilling Co. v. Egbert, supra note 4, at p. 35.

8 Davis v. Passman, §§§ U.S. §§§, 99 S. Ct. 2264, 60 L. Ed. 2d 846 [1979]; Boiling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 [1954].

9 APA, 75 O.S. 1971 § 301 et seq.

10 See Appendix to this opinion for appellate procedure in various health-related and healing arts licensing acts.