Opinion · Supreme Court of Oklahoma

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

598 P.2d 225

Type
Opinion
Court
Supreme Court of Oklahoma
Jurisdiction
Oklahoma
Date
1979-07-10
Topic
general

598 P.2d 225 (1979) 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. No. 53615. Supreme Court of Oklahoma.

Citator

UpLaw has not yet analyzed STATE EX REL. STATE BD., ETC. v. Naifeh. The absence of a flag is not a finding that it is good law.

Cited by
6 opinions
STATE EX REL. STATE BD., ETC. v. NAIFEH,1979 OK 105
598 P.2d 225
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.
No. 53615.
Supreme Court of Oklahoma.
July 10, 1979.
Original Proceeding in the Supreme Court.

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.
[1] MEMORANDUM OPINION BY ORDER
DOOLIN, Justice:
[2] 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.

[3] This Court is of the opinion that by virtue of 59 O.S. 1971 § 513[59-513] and our holdings thereunder,Davis v. State Board of MedicalExaminers,181 Okla. 385,74 P.2d 610(1937)andChoate v.State,204 Okla. 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.

[4] LET THE WRIT ISSUE.

[5] LAVENDER, C.J., IRWIN, V.C.J., and WILLIAMS, HODGES, BARNES and HARGRAVE, JJ., concur.

[6] SIMMS and OPALA, JJ., dissent.
[7] OPALA, Justice, dissenting:
[8] The first-impression issue before us is whether the provisions of 59 O.S. 1971 § 513[59-513] 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, Okla.Con.

[9] The history of § 513 parallels, if not mirrors, this century's growth of our administrative process. Before its last amendment in 19351, the section provided for a districtPage 226court appeal by trialde novo2— a procedure which unmistakably coincides with the early post-statehood notion of federal due process. It was then thought that under the minimum standards of federal due process an opportunity for complete retrial of issues, in a judicial forum, must be afforded to one who sought review in court of an administrative decision.3It might be hence more than mere coincidence that the 1935 amendment to § 513, which abrogated appeal by trialde novoand shaped the section into its present-day form,became effective a little less than fivemonths after this court had held that a full-blown in-courtrehearing of an administrative proceeding was not necessary tomeet due process requirements.4Most other provisions forde novo reviewof administrative decisions fell at once with the enactment, in 1963, of our Adm.Proc.Act.5That act introduced into our law the now prevailing concept of initial district courtreview on the recordwith an appeal right to this court.6

[10] 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.

[11] Our due process clause in Art. 2, § 7 has a definitional range that is coextensive with its federal counterpart.7The latter [and hence our own] contains a built-in anti-discrimination component which affords protection against unreasonable or unreasoned classifications serving no "important governmental objectives".8

[12] 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,9is available toallpersons licensed as healing arts practitioners, and toallthose in various health-related public service fields, but under the restrictive provisions of § 513, must be withheld from a single profession.10

[13] 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.

[14] 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.

[15] I am authorized to state that Simms, J., concurs in these views.Page 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.Page 228

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

____________________________________________________________________________ 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.

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

13. Water Sewage Works Dist. Ct. [O.S. 1971] § 1101 et seq.
  1. O.S.L. 1935, Ch. 24, Art. 7, pgs. 56-57. ↩
  2. Freeman v. State Board of Medical Examiners,54 Okla. 531,154 P. 56, 57 [1916];Oliver v. State,122 Okla. 66,251 P. 31[1926];Davis v. State Board of Medical Examiners,181 Okla. 385,74 P.2d 610, 613 [1937]. ↩
  3. In re Initiative Petition No. 23, State Question38,35 Okla. 49,127 P. 862, 863-864 [1912]. ↩
  4. This holding is contained inMcKeever Drilling Co. v.Egbert,170 Okla. 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[75-301] et seq. ↩
  6. 75 O.S. 1971 §§ 318[75-318] (2), 321, 323;Abel v. Okla. RealEstate Commission,Okla.,453 P.2d 1007[1969];Robbins v. Okla.Alcoholic Beverage Con. Bd.,Okla.,461 P.2d 610[1969];Traskv. Johnson,Okla.,452 P.2d 575[1969];Frank v. Okla. RealEstate Commission,Okla.,512 P.2d 190[1973];Baggett v. Webb,Okla.,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[75-301] et seq. ↩
  10. See Appendix to this opinion for appellate procedure invarious health-related and healing arts licensing acts. ↩